Department of History 


State of South Dakota 


Division of Legislative Reference 

BULLETIN 2 


Parallel References 

The Constitution - The Constitutional Debates , 

With Digest to Supreme Court Reports 


EDITED BY 
THOMAS ASKIN 

Legislative Reference Librarian 



33 ^ 











Department of History 

State of South Dakota 


Division of Legislative Reference 

BULLETIN 2 


Parallel References 

The Constitution - The Constitutional Debates , 

With Digest to Supreme Court Reports 


j ) •» 

> 


EDITED BY 

THOMAS ASKIN 

Legislative Reference Librarian 







Pierre, South Dakota, Sept. 10, 1910. 


HON. DOANE ROBINSON, Superintendent, 

Department of History 

Sir: 

I have the honor to submit for your approval, the manuscript 
for Bulletin No. 2, from the Division of Legislative Reference. 

The Bulletin is entitled “Parallel References, The Constitu¬ 
tion—Constitutional Debates, with Digest to Supreme Court Reports.” 

I desire to call your attention to the particular features of this 
Bulletin. 

First will be found in tabulated form the parallel references of 
the Constitution and the Debates. 

Second will be found the Supreme Court Decisions in digest 
form. The digest material follows directly after the individual section 
of the Constitution, which has been passed upon by the Court. 

Third will be found a most carefully prepared index, which re¬ 
fers both to the subject matter of the text of the Constitution and of 
the Debates. 

During the past year, the Division has had many requests to 
assist members of the bar in locating particular points in the Debaies- 
Altho the indices to the Debates are well prepared, yet the time 
involved in the effort to locate the discussions of various subjects 
was so considerable, that it inspired the Parallel References. 

Respectfully, 

THOMAS ASKIN, 

; .Legislative Reference Librarian. 


p, OF 

DEC 2 


PARALLEL REFERENCES 


■V. 

ok 

Article of 


Where discussed in !the 

V 

Constitution 


Constitutional Debates 

K* 

3 

ART. I. 



ART. II. 

Sec. 

I., Vol. 1, p. 146, 431, 
567, 585. 

a 

w 

ART. III. 

Vol. 

2, p. 385. 

s 


Sec. 

1, Vol. 1, p. 138. 

£ 


Sec. 

2, Vol. 1, p. 170, 178, 365 


Vol. 2, p. 342. 

Sec. 3, Vol. 1, p. 182. 

Sec. 4, Vol. 1, p. 209. 

Sec. 5, Vol. 1, p. 185, 206. 

Sec. 6, Vol. 1, p. 218. 

Sec. 7, Vol. 1, p. 615, 625. 

Sec. 12, Vol. 1, p. 223. 

Sec. 13, Vol. 1, p. 231. 

Sec. 20, Vol. 1, p. 233. 

Sec. 21, Vol. 1, p. 228. 

Sec. 22, Vol. 1, p. 235. 

Sec. 23, Vol. 1, p. 229. 

Sub. div. 4, Vol. 1, p. 319. 

Sub. div. 7, Vol. 1, p. 318. 

Sub. div. 9, Vol. 1, p. 124. 

Sub. div. 11, Vol. 1, p. 313, 634 
Sec. 28, Vol. 1, p. 241. 

ART. IV. 

Sec. 1, Vol. 1, p. 143, 276. 

Vol. 2, p. 478. 

Sec. 10, Vol. 1, p. 122. 

ART. V. 

Sec. 1, Vol. 1, p. 164. 

Sec. 4, Vol. 1, p. 255. 

Sec. 5, Vol. 1, p. 260. 

Sec. 10, Vol. 1, p. 264. 

Sec. 11, Vol. 1, p. 260-7. 

Sec. 13, Vol. 1, p. 148. 

Sec. 14, Vol. 1, p. 266. 

Sec. 17, Vol. 1, p. 564. 

Vol. 2, p. 193. 

Sec. 18, Vol. 1, p. 269. 

Sec. 19, Vol. 2, p. 453. 

Sec. 24, Vol. 1, p. 269, 606. 

Sec. 25, Vol. 1, p. 270. 

Sec. 26, Vol. 2, p. 450. 

Sec. 32, Vol. 2, p. 278. 

Sec. 34, Vol. 1, p. 272. 

Sec. 37, Vol. 1, p. 273. 

Sec. 38, Vol. 1, p. 273. 

ART. VI. 

Sec. 1, Vol. 1, p. 131. 

Sec. 3, Vol. 1, p. 339. 

Sec. 6, Vol. 1, p. 281. 

Sec. 7, Vol. 1, p. 289. 

Sec. 8, Vol. 1, p. 289. 

Sec. 9, Vol. 1, p. 290. 

Sec. 12, Vol. 1, p. 291. 

Sec. 13, Vol. 1, p. 125, 291, 303, 
333 

Sec. 18, Vol. i, p. 124. 

Sec. 26, Vol. 1, p. 340. 

Sec. 1, Vol. 1, p. 123. 

Vol. 2, p. 311. 

Sec. 2, Vol. 1, p. 123, 397, 403, 
633. 

Sec. 4, Vol. 1, p. 123, 393. 

Vol. 2, p. 470. 

Sec. 9, Vol. 1, p. 419. 


ART. VII. 


Parallel References—Continued 


Article of 
Constitution 

ART. VIII. 


ART. IX. 


ART. X. 
ART. XI. 


ART. XII. 
ART. XIII. 

ART. XIV. 
ART. XV. 
ART. XVII. 


ART. XVIII. 
ART. XIX. 
ART. XX. 
ART. XXI. 

ART. XXIII. 
ART. XXIV. 

ART. XXV. 
ART. XXVI. 


Where discussed in the 
Constitutional Debates 


Sec. 1, Vol. 2, p. 250. 

Sec. 4, Vol. 1, p. 171. 

Sec. 6, Vol. 1, p. 503. 

Sec. 8, Vol. 2, p. 252. 

Sec. 9, Vol. 1, p. 507. 

Sec. 11, Vol. 1, p. 499, 510, 593, 
597. 

Sec. 13, Vol. 1 , p. 515. 

Sec. 14, Vol. 2, p. 89. 

Sec. 2, Vol. 1, p. 449. 

Sec. 5, Vol. 1, p. 445, 607. 

Vol. 2, p. 427, 463, 470, 

477. 

Sec. 6, Vol. 1, p. 445. 

Sec. 7, Vol. 1, p. 453. 

Sec. 1, Vol. 1, p. 157, 229. 

Sec. 1, Vol. 1, p. 122, 458. 

Vol. 2, p. 495. 

Sec. 2, Vol. 1, p. 468, 543. 

Sec. 3, Vol. 1, p. 463. 

Sec. 4, Vol. 1, p. 149. 

Sec. 5, Vol. 1, p. 470. 

Sec. 6, Vol. 1, p. 471, 483, 491. 

Sec. 11, Vol. 1, p. 493. 

Sec. 2, Vol. 1, p. 125, 172. 

Sec. 2, Vol. 1, p. 156. 

Vol. 2, p. 495. 

Sec. 4, Vol. 2, p. 515. 

Sec. 1, Vol. 1, p. 547. 

Sec. 1, Vol. 1, p. 126, 187. 

Sec. 1, Vol. 1, p. 133, 439. 

Sec. 4, Vol. 1, p. 109. 

Sec. 12, Vol. 1, p. 465. 

Sec. 13, Vol. 1, p. 545. 

Sec. 15, Vol. 1, p. 125. 

Sec. 18, Vol. 1, p. 109. 

Sec. 1, Vol. 1, p. 549. 

Sec. 2, Vol. 1, p. 497. 

Sec. 1, Vol. 1, p. 401, 412, 437. 

Sec. 1, Vol. 1, p. 147, 571. 

Sec. 2, Vol. 1, p. 520. 

Sec. 4, Vol. 1, p. 552. 

Sec. 1, Vol. 1, p. 371, 609. 

Sec. —, Vol. 1, p. 87, 174, 327, 

368, 386. 

Vol. 1, p. 177, 368, 381. 

Sec. —, Vol. 1, p. 177, 368, 381. 

Sec. 17, Vol. 1, p. 613. 

Vol. 2, p. 297, 395. 


CONSTITUTION OP SOUTH DAKOTA 


[Adopted by popular vote October 1, 1889. Yeas, 70,131; Nays, 3,267.] 

PREAMBLE. 

We, the people of South Dakota, grateful to Almighty God for our civil and 
religious liberties, in order to form a more perfect and independent government, 
establish justice, insure tranquilty, provide for the common defense, promote 
the general welfare and preserve to ourselves and to our posterity the blessings 
of liberty, do ordain and establish this Constitution for the State of South Da¬ 
kota. 

ARTICLE I. 

NAME AND BOUNDARY". 

§ 1. The name of the state shall be South Dakota. 

§ 2. The boundaries of the State of South Dakota shall be as follow's: 
Beginning at the point of intersection of the western Boundary line of the State 
of Minnesota, with the northern boundary line of the State of Iowa and 
running thence northerly along the western boundary line of the State of Min¬ 
nesota to its intersection with the 7th standard parallel; thence west on the 
line of the 7th standard parallel produced due west to its intersection with the 
27th meridian of longitude west from Washington; thence south on the 27th 
meridian of longitude west from Washington to its intersection with the north¬ 
ern boundary line of the State of Nebraska; thence easterly along the northern 
boundary line of the State of Nebraska to its intersection with the western 
boundary line of the State of Iowa; thence northerly along the western boundary 
line of the State of Iowa; thence east along the northern boundary line of the 
State of Iowa to the place of beginning. 

ARTICLE II. 

DIVISION OF THE POWERS OF GOVERNMENT. 

The powers of the government of the state are divided into three distinct 
departments—the legislative, executive and judicial; and the powers and duties 
of each are prescribed by this Constitution. 

ARTICLE III. 

LEGISLATIVE DEPARTMENT. 

§ 1. The legislative power shall be vested in a legislature which shall con¬ 
sist of a senate and house of representatives. Except that the people expressly 
reserve to themselves the right to propose measures, which measures the legis¬ 
lature shall enact and submit to a vote of the electors of the state, and also the 
right to require that any laws which the legislature may have enacted shall be 
submitted to a vote of the electors of the state before going into effect, (except 
such laws as may be necessary for the immediate preservation of the public peace, 
health or safety, support of the state government and its existing public institu¬ 
tions.) 

Provided , that not more than five per centum of the qualified electors of the 
state shall be required tc invoke either the initiative or the referendum. 

This section shall not be construed so as to deprive the legislature or any 
member thereof of the right to propose any measure. The veto power of the 
executive shall not be exercised as to measures referred to a vote of the people. 
This section shall apply to municipalities. The enacting clause of all laws ap¬ 
proved by vote of the electors of the state shall be: “Be it enacted by the people 
of South Dakota.” The legislature shall make suitable provisions for carrying 

into effect the provisions of this section. 

(The foregoing section (§ 1) was submitted in its present form by the legislature In 
1897 as an amendment to the Constitution: (Chap. 89. Laws of 1897.) It was adopted 
by the people at the general election held November 8, 1898.) 



4 


Constitution of South Dakota 


AMENDMENTS—EMERGENCY CLAUSE—TENURE OF OFFICE—EN¬ 
ROLLED BILLS. 

1. Const. Art. 3, § 22, as amended, authorizing the passage of legisla¬ 
tive enactments with an emergency clause, should be read as a part of and 
further exception to Const. Art. 1, § 1, amended, reserving to the people 
the right to require that legislative enactments, except such as may be 
necessary for the immediate preservation of the public peace, health, or 
safety, shall be submitted to a vote of the people; and hence an act passed 
with such emergency clause is not unconstitutional, and will take effect on 
its passage and approval. 

2. The power to regulate the terms of office of the members of such 
board is in the legislature, and Act March 2, 1901, is valid. 

3. An enrolled bill filed in the office of the secretary of state is con¬ 
clusive in the courts that all provisions of the constitution requiring certain 
acts to be done in the passage of bills have been complied with. 

State ex rel. Lavin et al. v. Bacon et al., 14 S. D., 394, 85 N. W. 605. 

§ 2. The number of members of the house of representatives shall not be 
less than seventy-five, nor more than one hundred and thirty-five. The number 
of members of the senate shall not be less than twenty-five nor more than forty- 
five. 

The sessions of the legislature shall be biennial except as otherwise provided 
in this Constitution. 

§ 3. No person shall be eligible to the office of senator who is not a quali¬ 
fied elector in the district from which he may be chosen, and a citizen of the 
United States, and who shall not have attained the age of twenty-five years, and 
who shall not have been a resident of the state or territory for two years next 
preceding his election. 

No person shall be eligible to the office of representative who is not a quali¬ 
fied elector in the district from which he may be chosen, and a citizen of the 
United States, and who shall not have been a resident of the state or territory 
for two years next preceding his election, and who shall not have attained the age 
of twenty-five years. 

No judge or clerk of any court, secretary of state, attorney general state’s 
attorney, recorder, sheriff or collector of public moneys, member of either house 
of congress, or person holding any lucrative office under the United States, or this 
state, or any foreign government, shall be a member of the legislature; Provided , 
that appointments in the militia, the offices of notary public and justice of the 
peace shall not be considered lucrative; nor shall any person holding any of¬ 
fice of honor or profit under any foreign government or under the government of 
the United States, except postmasters, whose annual compensation does not ex¬ 
ceed the sum of three hundred dollars, hold any office in either branch of the leg¬ 
islature or become a member thereof. 

§ 4. No person who has been, or hereafter shall be convicted of bribery, 
perjury, or other infamous crime, nor any person who has been, or may be col¬ 
lector or holder of'public moneys, who shall not have accounted for and paid over, 
according to law, all such moneys due from him, shall be eligible to the legis¬ 
lature or to any office in either branch thereof. 

§ 5. The legislature shall provide by law for the enumeration of the in¬ 
habitants of the state in the year one thousand eight hundred and ninety-five 
and every ten years thereafter; and at its first regular session, after each enum¬ 
eration and also after each enumeration made by authority of the United States, 
but at no other time, the legislature shall apportion the senators and represen¬ 
tatives according to the number of inhabitants, excluding Indians, not taxed, and 
soldiers and officers of the United States army and navy. Provided , that the 
legislature may make an apportionment at its first session after the admission of 
South Dakota as a state. 

CENSUS—LEGISLATION—APPORTIONMENT. 

Article 3, sec. 5, is mandatory, but, since there is no power that can 
compel a legislature to take affirmative action in enacting laws, its action 
under the constitutional provision depends solely on its own volition, guided 
by its sense of public duty and responsibility. 

In case the legislature should fail to provide for the enumeration as 
required by the Constitution, the existing apportionment would remain in 
force. 

In re State Census, 6 S. D. 540, 62 N. W., 129. 

§ 6. The terms of the office of the members of the legislature, shall be two 
years; they shall receive for their services the sum of five dollars for each day’s 
attendance during the session of the legislature, and ten cents for every mile of 
nedessary travel in going to and returning from the place of meeting of the leg¬ 
islature on the most usual route. 

Each regular session of the legislature shall not exceed sixty days, except 



Constitution of South Dakota 


5 


in cases of impeachment, and members of the legislature shall receive no other 
pay or perquisites except per diem and mileage. 

(The foregoing section (§ 0) was amended at the general election held in November 
1802, by reducing the mileage of the members from “ten” to “five” cents per mile.) 

§ 7. The legislature shall meet at the seat of government on the first Tues¬ 
day after the first Monday of January at 12 o’clock m., in the year next ensuing 
the election of members thereof, and at no other time except as provided by this 
constitution. 

§ 8. Members of the legislature and officers thereof, before they enter upon 
their official duties, shall take and subscribe the following oath or affirmation: 
I do solemnly swear (or affirm) that I will support the constitution of the Unit¬ 
ed States and the constitution of the State of South Dakota, and will faithfully 
discharge the duties of (senator, representative or officer) according to the best 
of my abilities, and that 1 have not knowingly or intentionally paid or contrib¬ 
uted anything, or made any promise in the nature of a bribe, to directly or in¬ 
directly influence any vote at the election at which I was chosen to fill said office, 
and have not accepted, nor will i accept or receive directly or indirectly, any 
money, pass, or any other valuable thing, from any corporation, company or per¬ 
son, for any vote or influence I may give or withhold on any bill or resolution, 
or appropriation, or for any other official act. 

This oath shall be administered by a judge of the supreme or circuit court, 
or the presiding officer of either house, in the hall of the house to which the 
member or officer is elected, and the secretary of state shall record and file the 
oath subscribed by each member and officer. 

Any member or officer of the legislature who shall refuse to take the oath 
herein prescribed shall forfeit his office. 

Any member or officer of the legislature who shall be convicted of having 
sworn falsely to, or violated his said oath, shall forfeit his office and be disquali¬ 
fied thereafter from holding the office of senator or member of the house of rep¬ 
resentatives or any office within the gift of the legislature. 

§ 9. Each house shall be the judge of the election returns and qualfications 
of its own members. 

A majority of the members of each house shall constitute a quorum, but a 
smaller number may adjourn from day to day, and may compel the attendance 
of absent members in such a manner and under such penalty as each house may 
provide. 

Each house shall determine the rules of its proceedings, shall choose its own 
officers and employes and fix the pay thereof, except as otherwise provided in 
thi3 constitution. 

§ 10. The governor shall issue writs of election to fill such vacancies as may 
occur in either house of the legislature. 

§ 11. Senators and representatives shall, in all cases except treason, felony 
or breach of the peace, be privileged from arrest during the session of the leg¬ 
islature, and in going to and returning from the same; and for words used 
in any speech or debate in either house, they shall not be questioned in any 
other place. 

§ 12. No member of the legislature shall, during the term for which he was 
elected, be appointed or elected to any civil office in the state which shall have 
been created, or the emoluments of which shall have been increased during the 
term for which he was elected, nor shall any member receive any civil appoint¬ 
ment from the governor, the governor and senate, or from the legislature dur¬ 
ing the term for which he shall have been elected, and all such appointments 
and all votes given for any such members for any such office or appointment 
shall be void; nor shall any member of the legislature during the term for 
which he shall have been elected, or within one year thereafter, be interested, 
directly or indirectly, in any contract with the state or any county thereof, 
authorized by any law passed during the term for which he shall have been 
elected. 

LEGISLATOR—APPOINTMENT DURING TERM TO OTHER OFFICE—AT¬ 
TORNEY GENERAL—STATE’S ATTORNEY—R. R. COMR’S COM¬ 
PENSATION. 

Laws 1897, Chapter 110, Section 41, prescribing certain duties of the 
attorney general and state’s attorneys, authorizes the railroad commis¬ 
sioners to employ additional legal counsel, and the general appropriation 
bill for the same year, (Laws 189 7, Chapter 10, Section 20), contains the 
item; “For litigation fund for biennial period of 1897 and 1898, $4,500.” 
Held, that an attorney who was chosen a member of the legislature for the 
biennial period beginning January 1, 1897, cannot collect for services 
rendered the railroad commissioners during 1897. 

Palmer v. State, 11 S. D., 78, 75 N. W. 818. 

§ 13. Each house shall keep a journal of its proceedings and publish the 
same from time to time, except such parts as require secrecy, and the yeas and 
nays of members on any question shall be taken at the desire of one-sixth of 
those present and entered upon the journal, 




6 


Constitution of South Dakota 


EVIDENCE—JOURNALS—STATUTES—VALIDITY. 

The journals of the two houses of the legislature are not competent 
to impeach the validity of a statute enrolled and authenticated by the pro¬ 
per officers. 

Narregang v. Brown County et al., 14 S. D. t 357, 85 N. W. 602, App. 510, 997, 
ev. 520. 

§ 14. In all elections to be made by the legislature the members thereof 
shall vote viva voce and their votes shall be entered in the journal. 

§ 15. The sessions of each house and of the committee of the whole shall 
be open, unless when the business is such as ought to be kept secret. 

§ 16. Neither house shall, without the consent of the other, adjourn for 
more than three days, nor to any other place than that in which the two houses 
shall be sitting. 

§ 17. Every bill shall be read three several times, but the first and second 
reading may be on the same day, and the second reading may be by title of the 
bill, unless the reading at length be demanded. The first and third readings 
shall be at length. 

INSURANCE—POLICY—FORM OF. 

Rev. Civ. Code, § 664, providing that the State Insurance Commis¬ 
sioner shall keep on file in his office printed forms, in blank, of a contract 
or policy of fire insurance, and that the Commissioner shall, as near as the 
same can be applicable, conform to the type and form of the New York 
standard fire insurance policy, is repugnant, in so far as it delegates to the 
Commissioner power to prescribe the form of policy to be used, to Const. Art. 
3, § 17, requiring every bill to be read twice, at length, that the lawmakers 
may know what they are doing, and hence he has no power to compel in¬ 
surance companies to use any particular form of fire insurance policy. 

Phenix Ins. Co., of Brooklyn, N. Y., et al. v. Perkins, Commissioner of Insur¬ 
ance, 19 S. D., 59, 101 N. W. 1110. 

§ IS. The enacting clause of a law shall be: “Be it enacted by the legisla¬ 
ture of the State of South Dakota” and no law shall be passed unless by assent 
of a majority of all the members elected to each house of the legislature. And 
the question upon the final passage shall be taken upon its last reading, and the 
yeas and nays shall be entered upon the journal. 

§ 19. The presiding officer of each house shall, in the presence of the house 
over which he presides, sign all bills and joint resolutions passed by the legisla¬ 
ture, after their titles have been publicly read immediately before signing, and 
the fact of signing, shall be entered upon the journal. 

LEGISLATION—JOINT RESOLUTION—TITLES—EVIDENCE—PROHIBI¬ 
TION—AMENDMENT—SUBMISSION. 

1. Although the Constitution dees not require a joint resolution to 
have a title, it presupposes it will have one; and, where the title to a joint 
resolution is adopted after due consideration, it may be referred to and 
considered by the court for the purpose of ascertaining the intention of the 
two houses in adopting the resolution, if there is doubt as to that inten¬ 
tion. 

2. Laws 1895, Chap. 3 8, is: “House Joint Resolution proposing an 
amendment to the Constitution—A joint resolution to amend the Constitu¬ 
tion of the state of South Dakota by repealing Article 2 4 thereof, relating 
to prohibition, and submitting the same to a vote of the people. Be it re¬ 
solved by the house of representatives of the state of South Dakota, the 
senate concurring: Section 1. (Question submitted.) That at the general 
election to be held in the state of South Dakota on the first Tuesday after 
the first Monday in November, 1896, there shall be submitted to a vote of 
the qualified electors of the state of South Dakota the following question: 
“Shall Article 24 of the Constitution be repealed?” Held, that such joint 
resolution, read in connection with the title, shows that an amendment to 
the Constitution by striking out Article 2 4, relating to prohibition, was pro¬ 
posed and agreed to by the two houses, as required by Const. Art 23, § 1, 
which does not prescribe any particular form in which the two houses shall 
proceed in proposing, agreeing to, or submitting to the people an amend¬ 
ment; and the resolution is not open to the objection that the only proposi¬ 
tion agreed to was as to the submission to the people of the question, “Shall 
Article 24 of the Constitution be repealed?” 

3. The manner in which the question of the proposed amendment was 
submitted to the people was sufficient, and not misleading, though some¬ 
what informal, under Laws 1895, Chap. 86, § 1. 

4. Since the proposition was net to add anything to the constitution, 
but simply to strike out an article without adding or substituting anything 
in its place, the proceedings to effect the amendment are not assailable on 




Constitution of South Dakota 


T 


the ground that if the proposition, “Shall Article 24 of the Constitution be 
repealed?” as voted on by the electors, be added to that instrument, it 
would not have the effect to change or amend it. 

5. Proceedings to amend the Constitution are not invalidated because 
the proposed amendment is not “printed upon each ticket on the ballot,” 
as required by laws 1895, Chap. 86, all the other steps being as required by 
law. 

Lovett v. Ferguson, 10 S. D„ 44, 71 N. W., 765. 

§ 20. Any bill may originate in either House of the legislature, and & bill 
passed by one house may be amended in the other. 

§ 21. No law shall embrace more than one subject, which shall be expressed 
in its title. 

STATUTES—SUBJECT—TITLE—INTERPRETATION — CONSTRUCTION 

INTERSTATE COMMERCE. 

1. If a party assail the Constitutionality of an act, he must show be¬ 
yond reasonable doubt that it is in violation of the fundamental law of gov¬ 
ernment. Every presumption is in favor of the validity of a legislative enact¬ 
ment, and it is for the attacking party to show that his rights are invaded 
by that act, and that it does not come within the legitimate exercise of the 
lawmaking power, under the Constitution. 

2. The object of Section 21 of Article 3 of the Constitution of the 
state, was to prevent the bringing together in one act, subjects having no 
necessary connection or relation with each other, and to guard the legisla¬ 
tures and communities affected by the law against surprise and imposition; 
and it is mandatory,—a direct, positive, and imperative limitation upon 
the legislature. 

3. Sec. 21 was not intended to embarrass the legislature in the legi¬ 
timate exercise of its powers by compelling a needless multiplication of bills 
designed to meet the same object. A liberal interpretation and construction 
should be given it by the courts so as not to cripple or limit legislative en¬ 
actments any further than is necessary for the requirements of the law. The 
ground that an act embraces more than one subject, and that it was not 
sufficiently expressed in its title, should be grave, and the conflict between 
the statute and Constitution plain and manifest, before courts will be justi¬ 
fied in declaring it unconstitutional and void. 

4. When the title of a legislative act expresses a general subject or 
purpose which is single, all matters which are naturally and reasonably in¬ 
cluded in it, and all measures which will or may facilitate the accomplish¬ 
ment of the purpose, are germane to its title. The title must express the 
subject comprehensively so as to include all the provisions in the body 
of the act. It need not index all its details, but it should indicate the pur¬ 
pose of the legislature in the enactment. 

5. A portion of a statute may be unconstitutional and stricken out, 
and if that which remains is complete in itself, and capable of being exe¬ 
cuted in accordance with the apparent legislative intent, wholly independent 
of that which is rejected, the statute must be sustained. 

6. If, upon examination, the general meaning and object of the sta¬ 
tute be found inconsistent with the literal import of any particular clause 
or section, such clause or section must, if possible, be construed according 
to that purpose. 

7. Mercantile or commercial agencies are not such legitimate and use¬ 
ful intruments of commerce or commercial intercourse as to put them ex¬ 
clusively under the regulation of Congress, and free from state control, and 
a legislative enactment providing for the organization of such companies, 
and the regulation of their business within the limits of the state, is not 
an interference with interstate commerce, and is not void because in vio¬ 
lation of the commerce clause of Section 8, of Article 1, of the Constitution 
of the United States. 

State v. Morgan, 2 S. D., 32, 48 N. W., 314. 

STATUTES—CONSTRUCTION—TITLE—INTOXICATING LIQUOR. 

1. It is only when the collision between the legislative and the con¬ 
stitutional law is certain and inevitable that the courts feel justified in de¬ 
claring a law void. 

2. The object of Section 21, Art. 3, of the Constitution, is to prevent 
bringing together into one act measures diverse and foreign to each other, 
with a view of combining the friends of each, and thus to accomplish the 
passage in one law of the several measures, which could not have passed 
on their individual merits, and also to prevent the insertion into bills of 




8 


Constitution of South Dakota 


matter or measures of which the title gave no notice, and thus to deceive 
and mislead individual legislators and the public generally. 

3. The disposition of the courts is to construe this constitutional pro¬ 
vision liberally, rather than to embarrass or defeat legislation by a con¬ 
struction the strictness of which, is unnecessary to accomplish the beneficial 
purposes for which it was adopted. 

4. The reason for the rule that duplicity in the title and in the law 
is fatal to the law is the inability of the court to determine which of the 
different subjects named, the legislature intended as the subject of the law, 
and when the reason fails the rule fails, and so the rule applies only where 
such inability actually exists. 

5. As to chapter 101, Laws of 1890, Sec. 12, there is no such inability, 
for its title expressly declares that it is intended to enforce “the provisions 
of Article 24 of the Constitution,” and the provisions of that article cover only 
the manufacture, sale, and keeping for sale of intoxicating liquors, and not 
the use of such liquors; so that if it were, for any reason, incompetent for 
the legislature, in that law to legislate against the use of such liquors, the 
subject of the use might be dropped from both the title and the law, if, such 
subject being rejected, that which remains is a complete and sensible law, 
and capable of being executed in accordance with the apparent legislative 
intent. 

6. It is not necessary, in order to make such rejection allowable, that 
the obnoxious subject or matters be contained in independent provisions. 
The test is whether they are essentially and inseparably connected in 'sub¬ 
stance. 

7. Whether any portion or provision of a law is invalid because it vio¬ 
lates the constitutional rights of a citizen or because it violates a constitu¬ 
tional rule of legislation, its relation to tbe balance of the law is the same, 
and may be rejected from the law under tbe same conditions. 

8. The subject of the use of intoxicating liquors may be dropped from 
the title and from the provisions of the law without affecting the balance of 
the law. 

9. The punishment imposed by section 13, c. 101, Laws 1890, for the 
first offense of keeping and maintaining a common nuisance is not a “cruel 
punishment,” within the meaning of section 23, Art. 6, of the Constitution, 
and such provision is not unconstitutional on that account. 

10. Article 2 4 of the Constitution declares a policy single in its ulti¬ 
mate purpose and object, but a law for its enforcement must necessarily, 
and therefore may legally, include the employment of many measures and 
the attainment of many ends, not as independent objects or subjects of leg¬ 
islation, but as auxiliary to the final purpose sought. 

11. It is a well established and wholesome rule of law that no one can 
take advantage of the unconstitutionality of an independent provision of a 
law, who has no interest in and is not affected by such provisions. 

State v. Becker, 3 S. D., 29, 51 N. W., 1019. 

STATUTES—TITLE—SUBJECT—COUNTY BOUNDARIES. 

Laws 1897, c. 41, entitled, “An act changing and defining the bounaries 
of Stanley county,” authorized the submission of the question of such change 
to the voters of the county. Held, that such act was not invalid as embrac¬ 
ing more than one subject, not expressed in its title, since, the title to the 
act being general, it might properly include any provisions germane to the 
main subject. 

Stuart et al. v. Kirley et al., S. D., 246, 81 N. W., 147. 

STATUTES—TITLE—COUNTIES—INDEBTEDNESS—FUNDS. 

Laws 1901 c. 94, entitled “An act authorizing counties to fund their 
outstanding indebtedness,” wsa not a violation of Const. Art. 3, § 21, though 
the title did not indicate the character of the indebtedness to be funded. 

Walling v. Lummis, 16 S. D., 350, 92 N. W., 1063. 

STATUTES—TITLE—INTOXICATING LIQUORS—MARRIED WOMEN’S 

RIGHTS—ACTION. 

The provisions of Laws 1897, pp. 210, 211, c. 72, §§ 11, 16, declaring it 
unlawful for dealers in intoxicating liquors to sell to persons intoxicated, 
or in the habit of getting intoxicated, and giving a right of action to a 
married woman for damages from the sale of intoxicating liquors, are res¬ 
trictions and regulations of the sale and therefore within the title, “An act 
to provide for the licensing, restriction and regulation of the busness of 
the * * * sale of * * * intoxicating liquors,” and not violative 

of Const. Art. 3, § 21. 

Garrigan v. Kennedy et al., 19 S. D., 11, 101 N. W,, 1081. 




Constitution of South Dakota 


9 


STATUTE—TITLE—LANGUAGE. 

The constitutional requirement that the subject of an act shall be ex¬ 
pressed in its title, relates to substance and not to form, and the choice of 
language is a matter within the discretion of the legislature and the require¬ 
ment is satisfied where the title fairly indicates the purpose of the act, 
and is not calculated to mislead, though it be not the most appropriate that 
could have been selected. 

Morrow v. Wipf, 115 N. W., 1122. 

STATUTE—TITLE. 

Const. Art. 3, § 21, must beliberally construed so as not to limit legis¬ 
lative enactments any more than is necessary, and, when the title of an 
act expresses a general subject or purpose which is single, all matters natur¬ 
ally and reasonably included in it, and all measures which will or may facili¬ 
tate the accomplishment of the purpose are germane. 

Morrow v. Wipf, 115 N. W., 1121. 

STATUTES—TITLES—INTOXICATING LIQUOR—ACTION—MARRIED 

WOMAN’S RIGHTS 

The provision of Laws 1897, pp. 210, 211, c. 72, §§ 11, 16, declaring 
it unlawful for liquor dealers to sell to persons intoxicated or in the habit 
of getting intoxicated, and giving a right of action to a married woman for 
damages from the sale of intoxicating liquors, are restrictions and regula¬ 
tions of the sale, and therefore within the title, “An act to provide for the 
licensing, restriction and regulation of the business of the * * * sale 
of * * * intoxicating liquors,” and so not violative of Const. Art. 3, 
§ 21 . 

Palmer v. Schurz, 117 N. W., 150; See State v. Ayres, 8 S. D., 517, 67 N. W. 611. 

TAXATION IN UNORGANIZED COUNTY. 

See Dupree v. Stanley county, 8 S. D., 30, 65 N. W. 426. See State v. Ayres 
under Art. 6, Sec. 10. 

§ 22. No act shall take effect until ninety days after the adjournment of the 
session at which it passed, unless in case of emergency, (to be expressed in the 
preamble or body of the act) the legislature shall by a vote of two-thirds of all 
the members elected of each house otherwise direct. 

STATUTES—OPERATION—CONRACTS—EXEMPTIONS—DEBTS. 

Laws 1890, Chap. 86, § 2, reducing exemptions previously in force, 
provided that all acts in conflict therewith were repealed, “save only as to 
contracts now existing.” Held, that one against whom a judgment was 
rendered on a debt contracted subsequent to the passage of Laws 1890, but 
prior to the expiration of 90 days from the adjournment of the session at 
which it was passed, was entitled to claim the exemptions previously allow¬ 
ed. 

Long v. Collins, Sheriff, et al., 12 S. D., 621, 82 N. W., 95; See also State ex 
rel. Lavin et al. v. Bacon under Art 3, Sec. 1, 14 S. D., 394; See also Art. 4, Sec. 
4, in Re Opinion of Judges; See Art. 13, Sec. 4, Walling v. Lummis, 16 S. D., 350, 
92, N. W., 1063. 

§ 23. The legislature is prohibited from enacting any private or special 
laws in the following cases: 

1. Granting divorces. 

2. Changing the names of persons or places, or constituting one person the 
heir at law of another. 

3. Locating or changing county seats. 

4. Regulating county and township affairs. 

5. Incorporating cities, towns and villages or changing or amending the 
charter of any town, city or village, or laying out, opening, vacating or altering 
town plats, streets, wards alleys and public ground. 

6. Providing for sale or mortgage of real estate belonging to minors or 
others under disability. 

7. Authorizing persons to keep ferries across streams wholly within the 
sIhIg 

8. Remitting fines, penalties or forefeitures. 

9. Granting to an individual, association or corporation any special or ex 
elusive privilege, immunity or franchise whatever. 

10. Providing for the management of common schools. 

11. Creating, increasing or decreasing fees, percentages or allowances of 
public officers during the term for which said officers are elected or appointed. 

But the legislature may repeal any existing special law relating to the fore 
going subdivisions., 

In all other cases where a general law can be applicable no special law shall 
be enacted. 




10' 


Constitution of South Dakota 


STATUTES—SPECIFIC—GENERAL—COUNTIES—BOUNDARIES. 

Since it was the function of the legislature to determine whether or not 
a general law could be made applicable to an unspecified subject, a special 
act (Laws 1897, c. 41), providing for a change of the boundaries of Stanley 
county, was not in violation of the Constitutional provision. 

Stuart et al. v. Kirley et al., 12, S. D., 246. 81 N. W., 147; See also Art 13, § 5, 
Heyler v. City of Watertown, 16 S. D., 25, 91 N. W. 334. 

COUNTIES—INSANE—SUPPORT—CHARGES—ESTATE. 

Laws 1895, Chap. 9 8, § 1, making the expenses incurred by a county 
in caring for an insane person a charge against his estate, where such insane 
person has no heirs within the United States dependant on said estate for 
support, does not violate Const. Art. 3, § 23, or Art. 6, § 18. 

Bon Homme County v. Berndt et al., 13 S. D., 309, 83 N. W., 333. 

§ 24. The legislature shall have no power to release or extinguish, in whole 
or in part, the indebtedness, liability or obligation of any corporation or indi 
vidual to this state, or to any municipal corporation therein. 

LIABILITIES—RELEASE 

The legislature having, under Const. Art. 3, § 2 4, no power to release 
or extinguish a liability to the state, Laws 1897, c. 84, attempting to release 
any rights of the state in certain lands, is inoperative. 

State v. Mellette, 16 S. D., 298, 92 N. W., 395. 

§ 25. The legislature shall not authorize any game of chance, lottery oi 
gift enterprise under any pretense, or for any purpose whatever. 

§ 26. The legislature shall not delegate to any special commission, private 
corporation or association, any power to make, supervise or interfere with any 
municipal improvement, money, property, effects, whether held in trust or other 
wise, or levy taxes, or to select a capital site, or to perform any municipal func 
tions whatever. 

DELEGATION OF MUNICIPAL FUNCTIONS—COMMISSIONS. 

Laws 1905, p. 275, c. 163, creating a board, to be known as the “State 
Capitol Commission,” for the purpose of procuring the erection of a capitol 
building and authorizing the commission to procure the erection of a build¬ 
ing, adopt plans and specifications, etc., is not in conflict with Const, art. 3, 
§ 26. 

Davenport v. Elrod et al., 20 S. D., 567, 107 N. W., 833, Capitol Com’rs. 

§ 27. The legislature shall direct by law in what manner and in what 
courts suits may be brought against the state. 

§ 28. Any person who shall give, demand, offer, directly or indirectly, any 
money, testimonial, privilege or personal advantage, thing of value to any exec 
utive or judicial officer or member of the legislature, to influence him in the 
performance of any of his official or public duties, shall be guilty of bribery 
and shall be punished in such manner as shall be provided by law. 

The offense of corrupt solicitation of members of the legislature, or of public 
officers of the state, or any municipal division thereof, and any effort toward so¬ 
licitation of said members of the legislature or officers to influence their official 
action shall be defined by law, and shall be punishable by fine and imprisonment. 

Any person may be compelled to testify in investigation or judicial pro¬ 
ceedings against any person charged with having committed any offense of brib¬ 
ery or corrupt solicitation, and shall not be permitted to withhold his testi¬ 
mony upon the ground that it may criminate himself, but said testimony shall 
not afterward be used against him in any judicial proceeding except for bribery 
in giving such testimony, and any person convicted of either of the offenses 
aforesaid, shall be disqualified from holding any office or position or office of trust 
or profit in this state. 

ARTICLE IV. 

EXECUTIVE DEPARTMENT. 

§ 1. The executive power shall be vested in a governor who shall hold his 
office two years. A lieutenant governor shall be elected at the same time and for 
the same term. 

§ 2. No person shall be eligible to the office of governor or lieutenant gov 
ernor except a citizen of the United States and a qualified elector of the state, 
who shall have attained the age of 30 years, and who shall have resided two 
years next preceding the election within the state or territory; nor shall he be 
eligible to any other office during the term for which he shall have been elected. 

§ 3. The governor and lieutenant governor shall be elected by the qualified 
electors of the state at the time and places of choosing members of the legislature. 
The persons respectively having the highest number of votes for governor and 
lieutenant governor shall be elected; but if two or more shall have an equal 




Constitution of South Dakota 


11 


and highest number of votes for governor or lieutenant governor, the two houses 
of the legislature at its next regular session shall forthwith, bv joint ballot, 
choose one of such persons for said office. The returns of the election for gov¬ 
ernor and lieutenant governor shaii be made in such manner as shall be pre¬ 
scribed by law. 

§ 4. The governor shall be commander-in-chief of the military and naval 
forces of the state, except when they shall be called into the service of the United 
States, and may call out the same to execute lav/s, suppress insurrection and 
repel invasion. He shall have power to convene the legislature on extraordinary 
occasions. He shall, at the commencement of each session, communicate to the 
legislature by message, information of the condition of the state, and shall rec¬ 
ommend such measures as he shall deem expedient. He shall transact all nec¬ 
essary business with the officers of the government, civil and military. He shall 
expedite all such measures as may he resolved upon by the legislature, and shall 
take care that the laws be faithfully executed. 

LANDS—GRANTS—MILITIA—ENCAMPMENT GROUNDS. 

Act. Cong. Oc\ 1, 1890, granted lands to the state to be used as a per¬ 
manent camp and parade ground, and for such other purposes, in connection 
with the training and education‘of the militia, as the legislature may direct, 
the lands to revert to the United States when the state shall cease to use 
them for such purposes. Held that, in the absence of legislative provision, 
such lands are in the care and control of the governor, as commander in 
chief of the military forces of the state. 

In re opinion of Judges, 13 S. D., 191, 83 N. W., 96. 

§ b. Tne governor snail have the power to remit fines and forfeitures, to 
grant reprieves, commutations and pardons after conviction, for all offenses ex¬ 
cept treason and cases of impeachment; Provided , that in all cases where the 
sentence of the court is capital punishment, imprisonment for life, or for a 
longer term than two years, or a fine exceeding two hundred dollars, no pardon 
shall be granted, sentence commuted or fine remitted, except upon the recommen¬ 
dation in writing of the board of pardons, consisting of the presiding judge, sec¬ 
retary of state and attorney general, after full hearing in open session, and such 
recommendation, with the reasons therefor, shall be filed in the office of the sec¬ 
retary of state; but the legislature may by law in all cases regulate the manner 
in which the remission of fines, pardons, commutations and reprieves, may be 
applied for. Upon conviction for treason he shall have the power to suspend the 
execution of the sentence until the case shall be reported to the legislature at its 
next regular session, when the legislature shall either pardon or commute the 
sentence, direct the execution of the sentence or grant a further reprieve. He 
shall communicate to the legislature at each regular session each case of remis¬ 
sion of fine, reprieve, commutation or pardon, granted by him in the cases in 
which he is authorized to act without the recommendation of the said board of 
pardons stating the name of the convict, the crime of which he is convicted, the 
sentence and its date, and the date of the remission, commutation, pardon or re¬ 
prieve, with his reasons for granting the same. 

§ 6. In case of death, impeachment, resignation, failure to qualify absence 
from the state, removal from office, or other disability of the governor, the pow¬ 
ers and duties of the office for the residue of the term, or until he shall be ac¬ 
quitted, or the disability removed, shall devolve upon the lieutenant governor. 

§ 7. The lieutenant governor shall be president of the senate, but shall 
have only a casting vote therein. If during a vacancy in the office of governor 
the lieutenant governor shall be impeached, displaced, resign or die, or from 
mental or physical disease or otherwise become incapable of performing the du¬ 
ties of his office, the secretary of state shall act as governor until the vacancy 
shall be filled or the disability removed. 

§ 8. When any office shall, from any cause, become vacant and no mode is 
provided by the constitution or law for filling such vacancy, the governor shall 
have power to fill such vacancy by appointment. 

OFFICE—VACANCY—EXECUTIVE POWER—TERM. 

1. There being no provision for filling vacancies in Article 14 of the 
Constitution, creting a board of regents of education, nor in the act of the 
legislature enacted to carry into effect that article, a vacancy in such board 
can only be filled by the governor, pursuant to the provisions of section 8, 
Art. 4, of the Constitution. 

2. By that section, the power of the governor under such conditions to 
fill a vacancy, is for the unexpired term of the member whose place the ap¬ 
pointment is made to fill. 

3. When a vacancy is filled by appointment by the governor under the 
provisions of that section, no confirmation of the appointment by the senate 
is required. 

4. The sections of the Constitution should be construed together, and 




12 


Constitution of South Dakota 


such a construction given to them as will give effect to each section, and 
as far as possible harmonize their provisions. 

5. So construed, the clause of section 3, Art 14, should be construed 
to read, “except in cases of vacancies filled by appointment by the gover¬ 
nor.” 

State ex rel, Holmes, State’s Attorney, v. Finnerud, 7. S. D., 237, 64 N. W., 121; 
See also State ex rel. Lavin v. Bacon, 14 S. D., 284-394, Article 14, Sec. 2, 85 N. W. 
225; State ex rel. Wood v. Sheldon, Art. 14, Sec. 3. 

§ 9. Every bill which shall have passed the legislature, shall, before it be¬ 
comes a law, be presented to the governor. If he approve, he shall sign it, but 
if not, he shall return it with his objection to the house in which it originated, 
which shall enter the objection at large upon the journal and proceed to recon¬ 
sider it. If after such reconsideration, two-thirds of the members present shall 
agree to pass the bill, it shall be sent, together with the objection, to the other 
house, by which it shall likewise be reconsidered, and if it be approved by two- 
thirds of the members present, it shall become a law; but in all such case* 
the vote of both houses shall be determined by the yeas and nays, and the names 
of the members voting for and against the bill shall be entered upon the jour¬ 
nal of each house respectively. If any bill shall -not be returned by the governor 
within three days (Sundays excepted) after it shall have been presented to him, 
the same shall be a law, unless the legislature shall by its adjournment prevent 
its return; in which case it shall be filed, with his objection, in the office of the 
secretary of state, within ten days after such adjournment, or become a law. 

§ 10. The governor shall have power to disapprove of any item or items 
of any bill making appropriations of money embracing distinct items, and the 
part or parts of the bill approved shall be law, and the item or items disapproved 
shall be void, unless enacted in the following manner: If the legislature be in 
session he shall transmit to the house in wflrich the bill originated a copy of 
the item or items thereof disapproved, together with his objections thereto, and 
the items objected to shall be separately reconsidered, and each item shall then 
take the same course as is prescribed for the passage of bills over the executive 
veto. 

§ 11. Any governor of this state who asks, receives or agrees to receive 
any bribe upon any understanding that his official opinion, judgment or action 
shall be influenced thereby, or who gives or offers, or promises his official in¬ 
fluence in consideration that any member of the legislature shall give his of¬ 
ficial vote or influence on any particular side of any question or matter upon 
which he may be required to act in his official capacity, or who menaces any 
member by threatened use of his veto power, or who offers or promises any 
member, that he, the said governor, will appoint any particular person or per¬ 
sons to any office created or thereafter to be created, in consideration that any 
member shall give his official vote or influence on any matter pending or there¬ 
after to be introduced into either house of said legislature or who threatens 
any member that he, the said governor, will remove any person or persons from 
any office or position with intent to in any manner influence the official action of 
said member, shall be punished in the manner now, or that may hereafter be 
provided by law, and upon conviction thereon shall forfeit all right to hold or 
exercise any office of trust or honor in this state. 

§ 12. There shall be chosen by the qualified electors of the state at the time 
and places of choosing members of the legislature, a secretary of state, auditor, 
treasurer, superintendent of public instruction, commissioner of school and pub¬ 
lic lands, and an attorney general, who shall severally hold their offices for the 
term of tw'o years, but no person shall be eligible to the office of treasurer for 
more than two terms consecutively. They shall respectively keep their offices 
at the seat of government. 

§ 13. The powers and duties of the secretary of state, auditor, treasurer, 
superintendent of public instruction, commissioner of school and public lands 
and attorney general shall be as prescribed by law r . 

SECRETARY OF STATE—FEES—BRAND AND MARK COMMISSION 

Under Law's 1897, c. 90, making the secretary of state a member of 
the brand and mark committee, and providing that 20 per cent, of the fees 
paid under said act shall be paid to each member of said state brand and 
mark committee as full compensation for their services, the secretary of state 
is entitled to receive such 20 per cent, in addition to his salary as secre¬ 
tary of state, as compensation for his services as a member of the brand 
and mark committee, notwithstanding Const. Art. 4, * 13; Id. Art. 21, § 2. 

State v. Roddle, 12 S. D., 433, 81 N. W., 980; See State v. Becker, 3 S. D., 29, 
Art. 3, Sec. 21, 51, N. W., 1019. 

ARTICLE V. 

JUDICIAL DEPARTMENT. 

§ 1 The judicial powers of the state, except as in this constitution otherwise 
provided, shall be vested in a supreme court, circuit courts, county courts, and 




Constitution of South Dakota 


13 


justices of the peace, and such other courts as may be created by law for cities 
and incorporated towns. 

POLICE MAGISTRATE—JURISDICTION—EMBEZZLEMENT. 

Comp. Laws, § 7119, designates as examining magistrates police and 
other special justices appointed or elected in a city, village, or town. Held, 
that a police justice was authorized to act as a committing magistrate on a 
prosecution for embezzlement. 

State v. Wright, 15 S. D., 628, 91 N. W., 311. 

§ 2. The supreme court, except as otherwise provided in this constitution, 
shall have appellate jurisdiction only, which shall be co-extensive with the state, 
and shall have a general superintending control over all inferior courts under 
such regulations and limitations as may be prescribed by law. 

MANDAMUS TO INFERIOR COURTS—CITY COUNCIL—EXCEEDING AU¬ 
THORITY—INJUNCTION—COMPENSATION OF CITY ATTORNEY— 

AUTHORITY OF CITY TO EMPLOY ASSISTANTS 

1. Article 5, § 2, materially enlarges the ordinary appellate jurisdic¬ 
tion conferred upon reviewing courts. 

2. This added power authorizes this court, by writ of mandamus, to 
control and correct the proceedings of an inferior court where the action 
complained of exceeds the jurisdictional powers of such court, or there has 
been a manifest abuse of discretion, and where the case is urgent, and an 
appeal will not afford an adequate remedy, and the circumstances of the case 
are such as to require immediate review of the proceedings. 

3. The power of this court to issue the writ of mandamus to correct 
the proceedings of an inferior court necessarily includes the power to review 
the proceedings of such court, and to determine whether or not the case is 
a proper one for the exercise of the authority vested in this court. 

4. It is one of the fundamental rules of law that the judicial power 
cannot interfere with the legitimate discretion of any other department of 
government so long as it does no illegal act, and conducts its business within 
the limits of the powers conferred upon it and committed to its exercise, and 
when in the exercise of its powers it is not chargeable with an abuse of dis¬ 
cretion. 

City of Huron v. Campbell, Circuit Judge, 3 S. D., 309, 53, N. W., 182. 

Laws 1897, c. 55, amending Comp. Laws, § 5213, so as to prohibit ap¬ 
peals from circuit to supreme court in actions for the recovery of money 
where the amount recovered is $7 5 or less, or for the recovery of personal 
property of that value or less, is not void under Const. Art. 5, § 2, since such 
article does not attempt to prescribe the class of cases in which an appeal 
may be taken. 

McClain v. Williams, 10 S. D., 332, 73 N. W., 72; See also State v. Cram, 20 
S. D., 160. 

MANDAMUS—COUNTY JUDGE—QUALIFICATION—PROBATE. 

Under Const. Art. 5, § 2, the supreme court will grant a mandamus com¬ 
pelling a circuit court to receive an application to take jurisdiction to de¬ 
termine the existence of an alleged disqualification of a county judge in a 
probate proceeding. 

Vine et al. v. Jones, Judge, et al., 13 S. D., 54, 82 N. W., 82. 

SUPREME COURT—WRIT OF CERTIORARI—ATTORNEY GENERAL- 

ELECTIONS—UNORGANIZED COUNTIES. 

1. Under Sections 2 and 3, Art. 5, of the Constitution of the state, the 
original jurisdiction of the supreme court includes the power to issue, hear, 
and determine a writ of certiorari under such regulations as may be pre¬ 
scribed by law; where judicial questions are involved affecting the sovereign¬ 
ty of the state, its franchise or prerogatives, or the liberties of its people. 

2. An affidavit of the attorney general of the state, alleging that the 
board of county commissioners of an organized county has unlawfully estab¬ 
lished voting precincts and appointed judges of election and places for hold¬ 
ing elections in territory outside of and beyond the limits of its county, to- 
wit in unorganized counties attached to such organized county “for judicial 
purposes,” and that such acts are in violation of the election laws of the 
state, and an unlawful interference with the elective franchise of the state, 
and an injury to the rights and elective franchise of all the citizens of the 
state, presents a case for the exercise of such original jurisdiction by this 
court, where there is no writ of error, appeal, or other plain, speedy, and 
adequate remedy. 

3. In such case, the affidavit being made by the attorney general in 
behalf of the state, it is made by a party “beneficially interested.” 



14 


Constitution of South Dakota 


Z' 4. The power and authority to make such affidavit, and to apply for 
and prosecute such writ for the review of such proceedings, are inherent in 
the office of the attorney general upon principles of general law, and do not 
depend upon any express statute. 

5. A writ of certiorari issued under Section 5507, Comp. Laws, author¬ 
izing such writ, “when inferior courts, officers, boards, or tribunals have ex¬ 
ceeded their jurisdiction,” will reach, or bring before the court for review, 
the proceedings of such board of county commissioners, in respect to the 
acts so complained of, as in excess of the jurisdiction of said board, where 
there is no writ of error, appeal, nor, in the judgment of the court, any other 
plain, speedy, and adequate remedy. 

6. Held, there is no writ of error, appeal, nor other plain, speedy, and 
adequate remedy, and that a writ of certiorari properly issued. 

7. Chapter 175, Laws 1887, attaching the unorganized counties of 
Nowlin and Sterling to Hughes county “for judicial purposes,” did not have 
the effect of so attaching them for election purposes, such act being at once a 
grant and a limit of jurisdiction. 

8. To be attached “for judicial purposes,” as in said Chapter 175, is 
not to be “annexed” within the meaning of Section 535, Comp. Laws. 

State ex rel. Dollard, Attorney General, v. Board County Commissioners, 
Hughes County et al., 1, S. D., 292, 46, N. W., 1127. 

§ 3. The supreme court and the judges thereof shali have power to issue 
writs of habeas corpus. The supreme court shall also have power to issue writs 
of mandamus , quo warranto, certiorari, injunction and other original and reme¬ 
dial writs, with authority to hear and determine the same in such cases and un¬ 
der such regulations as may be prescribed by law 7 ; Provided, however , that no 
jury trials shall be allow r ed in said supreme court, but in proper cases, questions 
of fact may be sent by said court to a circuit court for trial before a jury. 

QUO WARRANTO—ELECTIONS—VACANCIES—TERMS DEFINED—AP¬ 
POINTMENT—JUDICIARY 

1. Section 3, Art. 5, must be understood as intended to give the court 
jurisdiction of cases in which the information in the nature of quo warranto 
has become a substitute for the ancient writ. 

2. In case of doubt between different constructions claimed for a con¬ 
stitutional or statutory provision or the meaning of a term, it is always al¬ 
lowable to inquire what results would legitimately follow either, with a view 
of ascertaining, if possible, whether such consequences were contemplated or 
intended. 

3. There is no inherent reserved power in the people to hold an elec¬ 
tion to fill a vacancy in an elective office. 

4. Such election can only be held when, and as authorized by law. 

5. In Section 37, Art. 5, the expression “next general election” means 
the next election at which it is provided by law that the officer may be elected 
whose office has become vacant. 

6. In November, 1892, when the general election was held, there was 
no law, constitutional or statutory, authorizing the election of a circuit judge, 
either for a full term or for a fractional term. 

7. Until such a law is passed there can be no election of supreme or 
circuit judges under Section 26, Art. 5. 

8. The governor having appointed respondent to the office of circuit 
judge of the Seventh Judicial circuit to fill a vacancy in said office, such 
appointment constitutes a good title to such office until the legislature pro¬ 
vides by law for the election of his successor. 

State ex rel. McGee v. Gardner, 3 S. D., 553, 54 N. W., 606. 

INJUNCTION—JURISDICTION OF COURT—INTERPRETS WHAT. 

1. Because this court has power to issue writs of mandamus, quo war¬ 
ranto, certiorari, injunction and other original and remedial writs, with au¬ 
thority to hear and determine the same, in such cases and under such regu¬ 
lations as may be provided by law, it does not follow that it has jurisdic¬ 
tion to issue an injunction upon any and all occasions. It is clothed with all 
the powers of a court of equity as understood and defined when the constitu 
tion was adopted, but its jurisdiction is limited to such matters as werp thon 
of recognized equitable cognizance. 

2. Power to amend the Constitution belongs exclusively to the leais 
ture and electors. It is legislation of the most important character This 
court has power to determine wha t such legislation is, what the constitution 
contains, but not what it should contain. It has power o determine what stat 




Constitution of South Dakota 


15 


utory laws exist, and whether or not they conflict with the Constitution; but 
it cannot say what laws shall or shall not be enacted. It has the power, and 
it is its duty, whenever the question arises in the usual course of litigation, 
wherein the substantial rights of any actual litigant are involved, to decide 
whether any statute has been legally enacted, or whether any change in the 
Constitution has been legally effected, but it will hardly be content that it 
can interpose in any case to restrain the enactment of an unconstitutional 
law. 

State ex rel. Cranmer v. Thorson, 9 S. D., 152-154, 68 N. W., 202. 

§ 4. At least two terms of the supreme court shall be held each year at the 
seat of government. 

§ 5. The supreme court shall consist of three judges, to be chosen from 
districts by qualified electors of the state at large, as hereinafter provided. 

§ 6. The number of said judges and districts may after five years from the 
admission of this state under this constitution, be increased by law to not ex¬ 
ceeding five. 

§ 7. A majority of the judges of the supreme court shall be necessary to 
form a quorum or to pronounce a decision, but one or more of said judges may 
adjourn the court from day to day, or to a day certain. 

§ 8. The term of the judges of the supreme court, who shall be elected 
at the first election under this constitution, shall be four years. At all subse¬ 
quent elections the term of said judges shall be six years. 

§ 9. The judges of the supreme court shall by rule select from their number 
a presiding judge, who shall act as such for the term prescribed by such rule. 

§ 10. No person shall be eligible to the office of judge of the supreme court 
unless he be learned in the law, be at least thirty years of age, a citizen of the 
United States, nor unless he shall have resided in this state or territory at least 
two years next preceding his election and at the time of his election be a resi¬ 
dent of the district from which he is elected; but for the purpose of re-election, 
no such judge shall be deemed to have lost his residence in the district by reason 
of his removal to the seat of government in the discharge of his official duties. 

COUNTY JUDGE—REQUIREMENTS. 

One elected to the office of county judge, must be either admitted, or en¬ 
titled to be admitted, without examination, to practice as an attorney at 
law in the state. 

Jamieson v. Wiggin, 12 S. D., 16, 80 N. W., 137. 

§ 11. Until otherwise provided by law, the districts from which the said 
judges of the supreme court shall be elected shall be constituted as follows: 

First District —All that portion of the state lying west of the Missouri river. 

Second District —All that portion of the state lying east of the Missouri river 
and south of the Second standard parallel. 

Third District —All that portion of the state lying east of the Missouri river 
and north of the Second standard parallel. 

§ 12. There shall be a clerk and also a reporter of the supreme court, who 
shall be appointed by the judges thereof and who shall hold office during the 
pleasure of said judges, and whose duties and emoluments shall be prescribed 
by law, and by the rules of the supreme court not inconsistent with law. The 
legislature shall make provisions for the publication and distribution of the de¬ 
cisions of the supreme court, and for the sale of the published volumes thereof. 
No private person or corporation shall be allowed to secure any copyrights to 
such decisions, but if any copyrights are secured they shall inure wholly to the 
benefit of the state. 

§ 13. The governor shall have authority to require the opinions of the 
judges of the supreme court upon important questions of law involved in the ex¬ 
ercise of his executive powers and upon solemn occasions. 

SUPREME COURT—OPINION AT REQUEST OF GOVERNOR. 

Const. Art. 5, § 13, is confined exclusively to such questions as may raise 
a doubt in the executive department—never in the legislative,—and therefore 
the court will not, on application by the governor, made at the request of 
both houses of the legislature, construe a section of the Constitution which 
declares the number of votes that shall be necessary for the passage of a law, 
in anticipation of certain rulings under such section by the presiding officers 
of the legislature; the question involved being one of purely parliamentary 
procedure. 

In re Construction of Constitution, 3 S. D., 548, 54 N. W., 650; See also In re 
Supreme Court Vacancy, 4 S. D., 532, N. W., 495. 

SAME. . . 

Const. Art. 5, § 13, upon reuuest of the governor for an opinion upon the 

construction of Session Laws 1890, Chap. 6, with reference co the appoint¬ 
ment of regents of education, involving the duration of the terms of office 



16 


Constitution op South Dakota 


of certain regents, an opinion thereon should not be given, as involving rights 
of persons not given an opportunity to be heard. 

In re Chapter 6, Session Laws of 1890, 8 S. D., 274, 66 N. W., 310. 

SAME. 

An opinion as to the constitutionaly of House Joint Resolution, Laws 
1897, Chap. 83, cannot be given under Const. Art. 5, § 13, since said resolu¬ 
tion involves the personal right of certain parties to hold commissioned of¬ 
fices and to be paid for services already rendered. 

In re House Resolution No. 30, 10 S. D., 249, 72 N. W., 892. 

§ 14. The circuit court shall have original jurisdiction of all actions and 
causes, both at law and in equity, and such appellate jurisdiction as may be con¬ 
ferred by law and consistent with this constitution; such jurisdiction as to 
value and amount and grade of offense may be limited by law. They and the 
Judges thereof shall also have jurisdiction and power to issue writs of habeas 
corpus, mandamus, quo warranto, certiorari, injunction and other original and 
remedial writs, with authority to hear and determine the same. 

CIRCUIT COURT—WRITS—ORDERS—CHAMBER COURT. 

The latter clause of Section 14, Art. 5, provides that “they (circuit 
courts) and the judges thereof shall also have jurisdiction and power to 
issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunc¬ 
tion, and other original and remedial writs, with authority to hear and de¬ 
termine the same;’’ and Section 18 of the same article provides that “writs 
of error and appeals may be allowed from the decision of the circuit courts to 
the supreme court under such regulations as may be prescribed by law.’’ It 
will thus be seen that the legislature could not take from the circuit judges 
the power to issue injunctions as judges, had it attempted to do so. That 
power, being conferred upon them by the Constitution, cannot be taken 
away by any legislative action; and, as Section 18 provides only for appeals 
from decisions of the circuit court, it may be a question whether it is com¬ 
petent for the legislature to provide for appeals from the order of a judge, 
if it desire to do so. When, then, the state Constitution and the statute 
have specifically conferred upon the court or judge the power to make an 
order, and the judge deems it proper to exercise the power vested in him 
by making the order a chambers order, and not a court order, such an ex¬ 
ercise of his discretion cannot be controlled by this court. 

B. H. F. & M. Co. v. G. I. & W. C. R. Co., 2 S. D., 546, 51 N. W.. 340 

JURISDICTION—MISDEMEANOR—CIRCUIT COURT—ASSAULT. 

1. A defendant indicted for an assault with a dangerous weapon with 
intent to do bodily harm may be found guilty of a simple assault, in view 
of Comp. Laws, § 7429, providing that “the jury may find the defendant 
guilty of any offense the commission of which is necessarily included in that 
with which he is charged in the indictment.” 

2. In view of Const. Art. 5, § 14, a circuit court has jurisdiction to try 
a misdemeanor, which by Comp. Laws, §§ 6509, 7043, may be tried in jus¬ 
tices’ courts. 

State v Finder, 10 S. D., 103, 72 N. W., 97. 

§ 15. The state shall be divided into judicial circuits, in each of which 
there shall be elected by the electors thereof one judge of the circuit court there¬ 
in, whose term of office shall be four years. 

§ 16. Until otherwise ordered by law, said circuits shall be eight in num¬ 
ber and constituted as follows, viz: 

COUNTY—UNORGANIZED—ASSESSMENT—ACTION FOR FEES. 

By Laws 1893, Chap. 49, Lyman county was attached to Brule county 
for judicial purposes January 26, 1893. Laws 1891, Chap. 15, as amended 
by Chap. 16, requires the assessor to assess the property in Lyman county 
and other unorganized counties, for state and judicial purposes, and makes 
the state liable for the expenses of criminal prosecutions arising in such un¬ 
organized counties.^ Held, in an action against the state for fees earned in 
criminal cases arising in Lyman county, that the petition must show that 
the fees were earned after January 2 6, 1893. 

Morgan v. State, 9 S. D., 230, 68 N. W., 538. 


CIRCUITS. 

.. , N ? 4 £r Th * e P^ 86 ^ 8 ^ 11 ? 8 ^ the s , e ^ eral circuits of the state is fixed by Ar¬ 
ticle 5, Chapter 11, Political Code, and Chapter 114 of the Session Laws of 1903 • 
Chapters 78, 79 and 80. Session Laws of 1905, and Chapters 111, 112 113 114 and 
115, Session Laws of 1907. ’ 

§ 17. The legislature may, whenever two-thirds of the members of each 
house shall concur therein, increase the number of judicial circuits and the 



Constitution of South Dakota 


17 


judges thereof, and divide the state into judicial circuits accordingly, taking 
care that they be formed of compact territory and be bounded by county lines 
but such increase of number or change in the boundaries of districts shall not 
work the removal of any judge from his office during the term for which he shall 
have been elected or appointed. 

§ 18. Writs of error and appeals may be allowed from the decisions of the 
circuit courts to the supreme court under such regulations as may be prescribed 
by law. 

APPEALS—LIMITATION OF. 

Const. Art. 5, § 18, is permissive only, and does not prohibit the legis¬ 
lature from limiting appeals to a defined class of cases. 

McClain v. Williams, 10 S. D., 332, 73 N. W., 72. 

COUNTY COURTS. 

§ 19. There shall be elected in cacn organized county a county judge who 
shall be judge of the county court of said county, whose term of office shall be 
two years until otherwise provided oy law. 

See Hauser v. Seeley, et al., 18 S. D., 308, 100 N. W., 437. 

§ 20. County courts shall be courts of record and shall have original juris¬ 
diction in all matters of probate, guardianship, and settlement of estates of 
deceased persons, and such other civil and criminal jurisdiction as may be con¬ 
ferred by law; Provided , that such courts shall not have jurisdiction in any 
case where the debt, uamage, claim or value of property involved shall exceed 
one thousand dollars, except in matters of probate, guardianship and the estates 
of deceased persons. Writs of error and appeal may be allowed from county to 
circuit courts, or to the supreme court in such cases and in such manner as may 
be prescribed by law; Provided, that no appeal or writ of error shall be allowed 
to the circuit court from any judgment rendered upon an appeal from a jus¬ 
tice of the peace or police magistrate for cities or towns. 

COUNTY COURTS—JURISDICTION—LIMIT OF—SPECIAL. 

In pursuance of the powers conferred by the Constitution, Art. 5, Sec. 20, 
34, the legislature of 1890 adopted a law—being Chapter 78 of the Session 
Laws of that year—fixing the jurisdiction of the county courts as to their 
“other civil and criminal jurisdiction” not fixed by the Constitution. By 
Section 6 of the same chapter, it is provided that they (county courts) shall 
have concurrent jurisdiction with the circuit courts, the amount thereof 
being limited, according to the population of the counties, as follows: 
“ * ♦ * and in all other counties, when the debt, damage, claim, or 
value of the property involved shall not exceed five hundred dollars.” These 
courts are therefore courts of limited and special jurisdiction as to “such 
other civil and criminal jurisdiction as may be conferred by law.” The jur¬ 
isdiction of such courts being limited to a specified sum, it can only exercise 
jurisdiction for any purpose when the debt, damage, or claim is within the 
amount specified. 

Nelson v. Ladd, 4 S. D., 1, 54 N. W., 809. 

COUNTY COURTS—JURISDICTION—SUBJECT MATTER—PARTIES— 

WAIVER—ACTION TRANSFERRED—MOTION TO DISMISS. 

1. By the provisions of Section 6, Chapter 78, Laws 1890, defining 
the jurisdiction of county courts, and limiting the jurisdiction of the same 
to “all that class of cases wherein justices of the peace now have, or may 
hereafter have jurisdiction, the amount thereof being limited according to 
the population of the counties,” the jurisdiction of such county courts is 
not only limited as to the subject matter of the action over which justices 
of the peace have jurisdiction, but to the jurisdiction of justices’ courts over 
the parties to the action. 

2. Section 6044, Comp. Laws, providing that “actions in justices’ 

courts must be commenced and * * * must be tried in the county where 

the defendant resides or in which he may be summoned,” and Section 6055 
providing, “that the summons cannot be served out of the county of the 
justice before whom the action is brought, except, when the action is brought 
on a joint contract or obligation of two or more parties,” control and limit 
the jurisdiction of county courts over the parties to the action. 

3. A general appearance by the defendant in an action, after a special 
appearance for the purpose, and motion made to dismiss the same on the 
ground that the court has no jurisdiction of the person, and which has been 
overruled and exception legally preserved, does not constitute a waiver of 
the objection to the jurisdiction of the court. 

4. When an action in which the court has not jurisdiction of the per¬ 
son of the defendant, and in which a motion to dismiss on the ground that 

Cons*.—2 



18 


Constitution of South Dakota 


the court has not jurisdiction of the person of the defendant has been made 
and overruled, and exception preserved, is transferred to another county 
court, the latter court acquires no jurisdiction of the same, and it should, 
on motion, dismiss the action. 

Benedict v. Johnson, 4 S. D., 388, 57 N. W., 66. 

COUNTY COURTS—POWERS. 

In ascertaining the powers of the county court in this state, it will be 
necessary to consult our own constitution and statutes in the light of recog¬ 
nized principles of law. If power exists to coerce obedience to this order 
of the county court, it exists by reason of the inherent powers of that court, 
and not by reason of any express statutory authority. The county court is 
a court of record created by the constitution. In all probate matters its pro¬ 
ceedings are to be construed in the same manner, and with like intendments 
as the proceedings of courts of general jurisdiction, and to its records, orders 
judgments, and decrees must be accorded the same force, effect and legal 
presumptions that are accorded to the records, orders, judgments, and de¬ 
crees of circuit courts. 

In re Taber, 13 S. D., 67, 82 N. W., 398. 

§ 21. The county court shall not have jurisdiction In cases of felony, nor 
shall criminal cases therein be prosecuted by indictment, but they may have 
such jurisdiction in criminal matters, not of the grade of felony, as the legis¬ 
lature may prescribe, and the prosecutions therein may be by information or 
otherwise as the legislature may provide. 

COUNTY COURT—JURISDICTION—LIMIT OF—BASTARDY. 

The provisions of Chapter 24, Laws 1893, conferring jurisdiction in bas- 
stardy proceedings upon county courts, are not in conflict with the provisions 
of Sections 20, 21, Art. 5. 

State v. Scott, 7 8. D., 619, 65 N. W., 31; See also State v. Bunker, 7 S. D., 721, 
66 N. W., 33. 

JUSTICE OF THE PEACE. 

8 22. Justices of the peace shall have such jurisdiction as may be conferred 
by law, but they shall not have jurisdiction of any cause wherein the value of 
the property or the amount in controversy exceeds the sum of one hundred dol- 
dars, or where the boundaries or title to real property shall be called in question. 

POLICE MAGISTRATE. 

The following amendment to Section 23 of Article V was submitted at the 
general election that was held November 6, 1906, and was adopted by a vote of 
29,417 for, and 18,755 against. 

§ 23. The legislature shall have power to provide for creating such police 
magistrates for cities and towns as may be deemed from time to time necessary, 
who shall have jurisdiction of all cases arising under the ordinances of such cities 
and towns respectively and such police magistrates may also be constituted ex- 
officio justices of the peace for their respective counties. In cities having 
a population of five thousand or over the legislature may provide, in lieu 
of police magistrates, for municipal courts the judges whereof shall be 
chosen in such manner as the legislature shall prescribe, which courts shall 
have exclusive original jurisdiction of all cases, both civil and criminal, 
cognizable before a justice of the peace under the laws of the state, and 
in which process shall be served within the city where such court is es¬ 
tablished, and shall also have exclusive original jurisdiction of all cases 
arising under the ordinances of such city. Such court shall also have juris¬ 
diction co-extensive with the county in which such city is situated, in such 
civil and criminal cases as may be provided by law. 

POWERS—EMBEZZLEMENT. 

Under Comp, laws § 7119, a police justice may act as a committing mag¬ 
istrate on a prosecution for embezzlement. 

State v. Wright, 15 S. D., 628, 91 N. W., 311. 

STATES ATTORNEY. 

§ 24. The legislature shall have power to provide for state’s attorneys and 
to prescribe their duties, and fix their compensation; but no person shall be eli¬ 
gible to the office of attorney general or state’s attorney who shall not at the time 
of his election be at least twenty-five years of age and possess all the other 
qualifications for judges of circuit courts as prescribed in this article. 

QUALIFICATIONS—CONTESTED ELECTION—CERTIFICATE OF NOM¬ 
INATION—OMMISSION IN—PLEADINGS. 

In a contest for the office of state’s attorney, under Comp. Laws, §§ 
1489, 1891, the ommission, in the certificate of nomination, of the words, 




Constitution of South Dakota 


19 


“learned in the law,” required as a qualification for candidates by Const. Art. 
5, §§ 24, 25, is obviated by an averment in the answer to the effect that at 
the time of the election plaintiff was, and still is the legally qualified and 
acting state’s attorney, as every essential fact appearing in the pleadings, in 
the absence of a demurrer or motion to dismiss, defendant has no cause for 
complaint. 

McMahon v. Polk, 10 S. D., 296, 73 N. W., 77. 

SAME. 

Under Const. Art. 5, §§ 24, 25, and Comp. Laws 1887, § 427, requir¬ 
ing persons eligible to the office of district attorney to be admitted to prac¬ 
tice as an attorney in some court of record in the territory, was without 
effect, since the legislature could not prescribe additional qualifications, or 
modify those imposed by the Constitution. 

Howard v. Burns, et al., 14 S. D., 384, 85 N. W., 920. 

MISCELLANEOUS. 

§ 25. No person shall be eligible to the office of Judge of the circuit or coun¬ 
ty courts, unless he be learned in the law, be at least twenty-five years of age, 
and a citizen of the United States; nor unless he shall have resided in this state 
or territory at least one year next preceding his election, and at the time of his 
election be a resident of the county or circuit, as the case may be, for which he 
is elected. 

QUALIFICATIONS. 

One elected to the office of county judge, must be either admitted, or 
entitled to be admitted, without examination, to practice as an attorney 
at law in this state. 

Jamieson v. Wigrgin, 12 S. D., 16, 80 N. W., 137. 

See dissenting' opinion in Church v. Walker, 10 S. D., 96. 

§ 26. The judges of the supreme court, circuit courts and county courts 
shall be chosen at the first election held under the provisions of this constitu¬ 
tion, and thereafter as provided by law, and the legislature may provide for the 
election of such officers on a different day from that on which an election is 
held for any other purpose, and may for the purpose of making such provision, 
extend or abridge the term of office for any of such judges then holding, but not 
in any case more than six months. The term of office of all judges of circuit 
courts, elected in the several judicial circuits throughout the state, shall expire 
on the same day. 

§ 27. The time of holding courts within said judicial circuits and counties 
shall be as provided by law; but at least one term of the circuit court shall be 
held annually in each organized county, and tne legislature shall make pro¬ 
vision for attaching unorganized counties or territory to organized counties 
for judicial purposes. 

TERM—SPECIAL—NEWLY ORGANIZED COUNTY. 

Under Const. Art. 5, § 27, a circuit judge may call a special term of 
court in a newly organized county where more than one year will intervene 
before the time fixed by law for holding the first regular term of court. 

In re Nelson, 19 S. D., 215, 102 N. W., 885. 

§ 28. Special terms of said courts may be held under such regulations as 
may be provided by law. 

TERMS—SPECIAL. 

If subsequent legislation was required to give effect to Const, art. 5, 

§ 28, it became operative by the enactment of Laws 1890, p. 254, c. 105, de¬ 
claring territorial laws not inconsistent with the state Constitution to be 
in force, which, in effect, re-enacted Comp. Laws 1887, § 426, authorizing 
circuit judges to appoint and hold special terms of court. 

In re Nelson, 19 S. D., 215, 102 N. W., 885. 

§ 29. The Judges of the circuit courts may hold courts in other circuits 
than their own, under such regulations as may be prescribed by law. 

CIRCUIT JUDGES—POWERS—MANDAMUS—APPEAL. 

1. Section 29, art. 5, does not touch the exercise of any power of a 
circuit judge other than that of “holding court.” It neither enlarges nor ab¬ 
ridges any other power of the judge, nor authorizes nor forbids the legis¬ 
lature to do so. It is simply silent as to every other power. 

2. There is nothing in the Constitution forbidding the legislature to 
authorize a circuit judge to make an order in his own circuit in a matter 
pending in another circuit, whose judge is absent; and chapter 79, Laws 
1890, so providing, is not invalid on that account. 

3. Within the meaning of said chapter, a petition or motion may prop¬ 
erly be considered as pending from the time of its filing in the office of the 



20 


Constitution of South Dakota 


clerk of the court of the proper jurisdiction, as a foundation for other pro¬ 
ceedings immediately to follow. 

4. An order of a judge in his own circuit, granting a premptory man¬ 
damus in another circuit, is not a decision which may be brought directly to 
this court for review, because— 

5. Both the Constitution and the statutes limit the appellate jurisdic¬ 
tion of this court to a review of the decisions of courts. 

Holden v. Haserodt, et al., 3 S. D., 4, 51 N. W., 340. 

§ 30. The judges of the supreme court, circuit courts and county courts 
shall each receive such salary as may be provided by law, consistent with this 
constitution, and no such judge shall receive any compensation, perquisite or 
emoluments for or on account of his office in any form whatever, except such 
salary; Provided , that county judges may accept and receive such fees as may 
be allowed under the land laws of the United States. 

§ 31. No judge of the supreme court or circuit court shall act as attorney 
or counselor at law, nor shall any county judge act as an attorney or counselor 
at law in any case which is or may be brought into his court or which may be 
appealed therefrom. 

§ 32. There shall be a clerk of the circuit court in each organized county, 
who shall also be clerk of the county court, and who shall be elected by the 
qualified electors of such county. The duties and compensation of said clerk 
shall be as provided by law and regulated by the rules of the court consistent 
with the provisions of law. 

CIRCUIT COURT—CLERK—VACANCY. 

Section 32, Art. 5, of the Constitution, having created the office of clerk 
of the circuit court, and having provided generally for the election of such 
officer, with other county officers, at the general election in November, 1890, 
and the state having been admitted on the 2d day of November, 1889, there 
was a vacancy in such office from the time of the admission of the state. 

Driscoll v. Jones, 1 S. D., 8, 44 N. W., 726. 

§ 33. Until the legislature shall provide by law for fixing the terms of 
courts, the judges of the supreme, circuit and county courts respectively shall fix 
the terms thereof. 

§ 34. All laws relating to courts shall be general and of uniform opera¬ 
tion throughout the state, and the organization, jurisdiction, power, proceedings 
and practice of all the courts of the same class or grade, so far as regulated by 
law, and the force and effect of the proceedings, judgments and decrees of such 
courts severally shall be uniform; Provided, however, that the legislature may 
classify the county courts according to the population of the respective counties 
and fix the jurisdiction and salary of the judges thereof, accordingly. 

LAWS—UNIFORMITY—APPEALS—CIRCUIT—COURT. 

Laws 1897, Chap. 55, amending Comp. Laws, Sec. 5213, so as to pro¬ 
hibit appeals from circuit to supreme court in actions for the recovery of 
money where the amount recovered is $75 or less, or for the recovery of 
personal property of that value or less, and not including in its provisions 
certain county courts having concurrent jurisdiction with the circuit courts, 
violates Const. Art. 5, Sec. 34. 

McClain v. Williams, 11 S. D., 60, 75 N. W., 391. 

MUNICIPAL LEGISLATION—CITY CHARTER—SPECIAL ACTS— AP¬ 
PEALS LIMITED. 

The provision of a city charter authorizing an appeal only in cases 
under the city ordinances tried without a jury is, where the ordinance pun¬ 
ishes an act made criminal by state law, in conflict with the Constitution, 
with Rev. Pol. Code sec. 1275, and with Rev. Justices’ Code, sec. 148. 

Under Comp. Laws 1 882, sec, 6571, one convicted by a jury of viola¬ 
ting an ordinance of the city prohibiting the keeping of a house of ill-fame, 
may appeal. 

Mannie et al. v. Hatfield, Police Magistrate, 22 S. D. 118 N. W. 817. 

§ 35. No judge of the supreme or circuit courts shall be elected to any oth¬ 
er than a judicial office, or be eligible thereto, during the term for which he was 
elected such judge. All votes for either of them during such term for any 
elective office, except that of judge of the supreme court, circuit court or county 
court, given by the legislature or the people, shall be void. 

§ 36. All judges or other officers of the supreme circuit or county courts 
provided for in this article shall hold their offices until their successors respect¬ 
ively are elected or appointed and qualified. 

OFFICE, TENURE OF—INELIGIBILITY. 

The facts stated in the amended notice, however, would entitle the 




Constitution of South Dakota 


21 


plaintiff, if established, to the office, as an incumbent of an office holds over 
in case the candidate receiving the highest number of votes is ineligible 

Batterton v. Fuller, 6 S. D., 268, 60 N. W., 1071. 

§ 37. All officers provided for in this article shall respectively reside in 
the district, county, precinct, city or town for which they may be elected or 
appointed. Vacancies in the elective offices provided for in this article shall 
be filled by appointment until the next general election as follows: All judges 
of the supreme, circuit and county courts by the governor. All other judicial 
and other offices by the county board of the counties where the vacancy occurs- 
in cases of police magistrates, by the municipality. 

VACANCY—MANDAMUS. 

1. The state being admitted in 1889, an election was not held until 
1890 and there was a vacancy, and under section 3 7, Art. 5, of the Constitu¬ 
tion, the board of county commissioners could legally fill such vacancy in 
their county by appointment. 

2. Mandamus is the proper remedy to compel the delivery of the seal, 
records, and other property of an office to a person showing himself prima 
facie entitled to them. 

Driscoll v. Jones, 4 S. D., 532, 44 N. W., 726; See also In re Supreme Court 
vacancy. 

“ELECTION, NEXT GENERAL” DEFINED. 

The expression, “next general election” means the next election at which 
it is provided by law that the officer may be elected, whose office has be¬ 
come vacant. 

State ex rel. McGee v. Gardner, 3 S. D., 553, 54 N. W., 606. 

§ 38. All process shall run in the name of the “State of South Dakota.” All 
prosecutions shall be carried on in the name of and by authority of the “State 
of South Dakota.” 

See also In re Kirby, 10 S. D., 324. 

INDICTMENT—PROCESS. 

1. By the provisions of Section 3 8, Article 5, it is not essential that an 
indictment shall contain a recital in terms that the prosecution is by the 
authority of the state. It is suifficient if the record shows that the prose¬ 
cution is so conducted. 

2. An indictment entitled in the name of the “State of South Dakota” 
as plaintiff against the person charged with a crime as defendant, reciting 
that it is found and presented to the court by a grand jury of the state, in 
and for the proper county, duly and legally impaneled, charged, and sworn, 
and which concludes, that the crime charged was committed against the 
peace and dignity of the State of South Dakota, and is signed by the state’s 
attorney of the proper county, sufficiently shows that the prosecution is car¬ 
ried on in the name and by the authority of the state. 

State v. Thompson, 4 S. D., 95, 55 N. W., 725. 

ARTICLE VI. 

BILL OF BIGHTS. 

§ 1. All men are born equally free and independent, and have certain 
Inherent rights, among which are those of enjoying and defending life and 
liberty, of acquiring and protecting property and the pursuit of happiness. 
To secure these rights governments are instituted among men, deriving 
their just powers from the consent of the governed. 

BANKING—PROHIBITIONS. 

The said act, (Chap. 27, laws 1891), in so far as it prohibits individuals 
or firms from carrying on the business of banking, specified in said subdivi¬ 
sion 7 of section 4 of said act, is in conflict with the provisions of section 1 
of Article 6 of the Constitution. 

State v. Scougal, 3 S. D., 55, 51 N. W., 858; Se also In re Construction of Con¬ 
stitution, under Art. 5, Sec. 13. 

§ 2. No person shall be deprived of life, liberty or property without due 
process of law. 

BANKING—PROHIBITIONS. 

1. The said act, (Chap. 27 laws 1891) in so far as it prohibits indivi¬ 
duals and firms from carrying on the business of banking, specified in said 
subdivision 7 of section 4 of said act, conflicts with section 2, Art. 6, of the 
Constitution. 

State v. Scougal, 3 S. D., 55, 51 N. W. 858. 

DUE PROCESS OF LAW—TAX RECEIPT—COLLECTION. 

Laws 1890, p. 318, c. 150, § 3, providing that possession of a tax re¬ 
ceipt shall be conclusive evidence that all prior taxes on the property have 




22 


Constitution of South Dakota 


been paid, and shall be a bar to their collection, is repugnant to Const, art. 
6, § 2, as a county is a person and a tax property, within the meaning of the 
section. 

Harris v. Stearns, County Treasurer, 17 S. D., 439, 97 N. W., 361;See also Har¬ 
ris v. Stearns, 108 N. W. 247 (Former opinion reversed.) 

NURSERY STOCK—SALE OF. 

The Laws of 1907, p. 414, c. 194, regulating the sale of nursery stock, 
provides for the issuance of a certificate and permit by the state board of 
agriculture. The law declares that as a condition precedent thereto, the 
board shall require such references and evidences of integrity as may be 
necessary to establish the responsibility and good faith of the applicant, but 
provides for no appeal from the decision of the board. It is held that the 
word “responsibility” meant ability to answer in payment or to respond in 
damages for injuries caused by the sale of improper nursery stock, and that 
such provision, not being with in the police power of the state to protect the 
people from fraud, imposition and deception, was a violation of Art. 6, sec. 2, 
in that it confers upon the board the absolute power to determine who and 
who shall not sell nursery stock within the state. 

Ex parte Hawley, 22 S. D. - 115 N. W. 93. 

§ 3. The right to worship God according to the dictates of conscience shall 
never be infringed. No person shall be denied any civil or political right, privi¬ 
lege or position on account of his religious opinions; but the liberty of con¬ 
science hereby secured shall not be so construed as to excuse licentiousness, the 
invasion of the rights of others, or justify practices inconsistent with the peace 
or safety of the state. 

No person shall be compelled to attend or support any minister or place of 
worship against his consent nor shall any preference be given by law to any 
religious establishment, or mode of worship. No money or property of the state 
shall be given or appropriated for the benefit of any sectarian or religious socie¬ 
ty or institution. 

APPROPRIATIONS FOR SECTARIAN SCHOOLS—PAYMENT OF STU¬ 
DENTS’ TUITION—VALIDITY OF CONTRACT. 

Construing Art. 6, sec. 3, and Art. 8 sec. 16 it is held that these provi¬ 
sions of the Constitution were intended to be and are self-executing, and re¬ 
quire no act of the legislature to become operative, but of themselves con¬ 
trol all legislation upon the subject of appropriating money or other pro¬ 
perty for “the benefit of” or “to aid” any sectarian school, society, or insti¬ 
tution, and control and limit the powers of all state, county, and municipal 
officers in auditing or paying any such appropriation. 

Synod of Dakota v. State, 2 S. D., 366, 50 N. W., 632. 

§ 4. The right of petition, and of the people peacebly to assemble to con¬ 
sult for the common good and make known their opinions, shall never be 
abridged. 

§ 6. Every person may freely speak, write and publish on all subjects, be¬ 
ing responsible for the abuse of that right. In all trials for libel, both civil 
and criminal, the truth, when published with good motives and for Justifiable 
ends, shall be sufficient defense. The jury shall have the right to determine 
the fact and the law under the direction of the court. 

SLANDER—PRIVILEGED COMMUNICATION—CHARGE TO JURY—ER¬ 
ROR. 

Where, in an action for slander, the plea was that the statement was 
privileged, it was error for the court to assume to decide that the communi¬ 
cation was not privileged; its duty being merely to direct the jury by stat¬ 
ing to them what constitutes a privileged communication. 

Ross v. Ward, 14 S. D., 240, 85 N. W„ 182. 

LIBEL—EVIDENCE—RECORDS, ABSENCE OF. 

In an action for libel, that where the evidence, including the alleged 
libel, was absent from the record, an instruction submitting to the jury the 
question whether the publication charged plaintiff with being prosecuted 
criminally, for embezzlement would be presumed proper, if it would be pro¬ 
per under any provable state of facts under the pleadings. 

Myers v. Longstaff, 14 S. D., 98, 84 N. W., 234; See also Boucher v. Clark Pub¬ 
lishing Co., 14 S. D., 72, 84 N. W. 237. 

§ 6. The right of trial by jury shall remain inviolate and shall extend 
to all cases at law without regard to the amount in controversy, but the legis¬ 
lature may provide for a jury of less than twelve in any court not a court of 
record and for the decision of civil cases by three-fourths of the jury in any 
court 





Constitution of South Dakota 


23 


JURY TRIAL—STATUTES VIOLATING. 

The charter of the city of Watertown (sections 25, 27), authorizing a 
police justice to try certain cases for violation of ordinance without a jury, 
and allowing an appeal in such cases only when imprisonment exceeding 10 
days or a fine exceeding $20 is imposed, violates Const. Art. 6, § 6, and sec¬ 
tion 7. 

Belatti v. Pierce, Police Justice, 8 S. D., 456, 66 N. W., 1088. 

JURY—TRIAL—PROBATE PROCEEDINGS. 

Under Const. Art. 6, § 6, parties who petitioned for letters of adminis¬ 
tration had no constitutional right to a jury trial. 

In re McCullan’s Estate, 20 S. D., 498, 107 N. W., 681. 

TRIAL—NON-WAIVER. 

Under the provision of Art. 6, § 6, Rev. Code Civ. Proc. § 275, pro¬ 
viding that in an action for the recovery of specified real or personal pro¬ 
perty trial by jury may be waived only with the assent of the court to the 
written consent of the parties filed with the clerk, or an oral stipulation 
made in open court and recorded in the minutes of the trial, the right to a 
trial by jury is not waived by defendant in an action at law for the recovery 
of personal property by moving for a directed verdict at the conclusion of 
plaintiff’s evidence, where, after the denial of the motion, he introduces evi¬ 
dence sufficient to carry his case to the jury. 

Albien v. Smith, 19 S. D., 421, 103 N. W., 655. 

$ 7. In all criminal prosecutions the accused shall have the right to de¬ 
fend in person and by counsel; to demand the nature and cause of the accusa¬ 
tion againt him; to have a copy thereof; to meet the witnesses against him face 
to face; to have compulsory process served for obtaining witnesses in his be¬ 
half, and to a speedy public trial by an impartial jury of the county or district 
in which the offense is alleged to have been committed. 

CONTEMPT—WITNESSES—STATUTORY PROVISIONS. 

1. Neither the constitutional provision that “the right of trial by jury 
shall remain inviolate,” nor that the accused shall be entitled “to meet the 
witnesses against him face to face,” has application to summary proceedings 
to punish for contempt. 

2. That portion of section 13, c. 101, Laws 1890, which provides that 
“the affidavits upon which the attachment of contempt issues shall make a 
prlma facie case for the state,” is not unconstitutional, as being an encroach¬ 
ment of the legislative upon the judicial power. 

3. Whether the law is unconstitutional, in that under it a defendant 
may be compelled to be a witness against himself, is not decided, for it is 
not claimed that defendant’s rights were so violated, and it is a well-estab¬ 
lished rule of law that no one can take advantage of the unconstitutionality 
of any provision of a law who has no interest in, and is not affected by, such 
provision. 

State v. Mitchell, 3 S. D., 223, 52 N. W., 1052. 

INDICTMENT—SUFFICIENCY OF—INTOXICANTS. 

Under Section 7, Art. 6, the offense charged in an indictment must be 
set forth with sufficient certainty to enable the accused to prepare his de¬ 
fense in advance of the trial, to enable the trial court to know that the ac¬ 
cused is being tried upon the identical charge passed upon by the grand jury, 
and to enable the accused to plead his conviction or acquittal in bar of a 
second indictment. 

2. An indictment which charges the offense as follows; “That F. B., 
late of said county, yeoman, on the 1st day of March, in the year of our Lord 
one thousand eight hundred and ninety-three, at the county of Beadle and 
State of South Dakota, with a force of arms then and there did wilfully, 
wrongfully, and unlawfully sell intoxicating liquors, to be drank as a bev¬ 
erage, contrary to the statute in such case made and provided, and against 
the peace and dignity of the State of South Dakota,”—is insufficient, in that 
it does not set out the nature and cause of the accusation with that degree 
of certainty required by Section 7, Art. 6, of the state Constitution. 

State v. Burchard, 4 S. D., 448, 57 N. W., 491. 

TRIAL—DELAY—DISCHARGE. 

Const. Art. 6, § 7, entitles an accused to a speedy trial. Rev. Code Cr. 
Proc. § 630, declares that, if a defendant prosecuted for a public offense, 
whose trial has not been postponed on his application, is not brought to trial 
at the next term of court in which the indictment or information is triable, 
the court must order the prosecution dismissed, unless no cause is shown 
to the contrary; and section 395 provides that, where the jury disagree, the 




24 


Constitution of South Dakota 


cause may be again tried at the same or another term, as the court may di¬ 
rect. Held, that where accused was on bail, and after one disagreement ap¬ 
plied for a change of judge, but took no steps to prevent the adjournment of 
his case for several terms, nor to procure an earlier retrial, he was not en¬ 
titled to a discharge for delay. 

State v. Lamphere, 20 S. D., 98, 104 N. W., 1038. 

WITNESSES—NOTICE OF. 

Sec. 7, does not require that notice be given to accused previous to the 
trial, of all witnesses who may be called by the state. 

State v. Matejouslcy, 22 S. D. - 115 N. W. 96. 

TRIAL—EVIDENCE—ERROR. 

Rev, Code Cr. Proc. sec. 7, sub. div. 3, gives the accused the right to 
be confronted by the witnesses against him in the presence of the court; it 
was error to read from the stenographer’s transcript the testimony on pre¬ 
liminary examination of the witness for the state who were then absent from 
the state. 

State v. Heffernan et al., 22 S. D., - 118 N. W., 1027. 

APPEAL—RECORDS—COMPLAINT. 

1. A defendant is entitled, on appeal from a conviction before a jus¬ 
tice on questions of both law and fact, to have all papers filed in the cause 
transmitted to the circuit court (Comp, Laws § 6182), and to the benefit of 
all legal questions raised on the pleadings in the justice court. 

2. The sworn complaint required in all prosecutions before a justice 
(Comp. Laws, § 6147) is jurisdictional in all stages of tbe prosecution, and a 
defendant cannot be tried in the circuit court on an appeal on questions of 
both law and fact, unless such complaint has been certified up by the jus¬ 
tice. 

3. To hold that a court, in any stage of a criminal prosecution, may 
try and convict a defendant, without a semblance of such an accusation as 
the law expressly requires, would establish a precedent, unsanctioned by the 
statute, and at variance with bis right, “to demand the nature and cause of 
the accusation against him, to have a copy thereof,” as guaranteed by Sec¬ 
tion 7 of Article 6 of the Constitution of this state. 

State v. Walker, 9 S. D., 438, 69 N. W. 586. 

WITNESSES—PROCESS TO SECURE. 

One is entited as a matter of right to the presence of his witnesses or 
every advantage of their presence, if their presence be procurable, and this 
necessarily includes adequate means to secure their presence or the advan¬ 
tages which would flow therefrom. Hence he is entitled, under reasonable 
regulations, to process for witnesses anywhere within the state, and to a 
reasonable opportunity to invoke the use of such process. 

State v. Wilcox, 22 S. D. - 115 N. W., 687. 

INDICTMENT, CONTAINS WHAT. 

It is “the acts constituting the offense,” not the conclusion of the pleader 
as to what crime such acts constitute, which is required. Facts are de¬ 
manded, not conclusions of law, or obsolete technical phrases. The prin¬ 
cipal office of the indictment is to inform the accused of the “nature and 
cause of the accusation against him,” to be thus informed being one of his 
most important constitutional rights. How can the required object be better 
attained than by stating the acts constituting the alleged offense “in ordinary 
and concise language, without repetition, and in such a manner as to enable 
a person of common understanding to know what is intended.” 

State ex rel. Kotillinic v. Swenson, 18 S. D., 202, 99 N. W. 1114. 

TRIAL—REMOVAL OF ACTION. 

Comp. Laws, §§ 7312-7318, providing for the removal of a criminal 
action prosecuted by indictment, on the application of the state’s attorney, 
from the court in which it is pending, if the offense charged be punishable 
with death or imprisonment in the penitentiary, where it appears that a 
fair and impartial trial cannot be had in such county or subdivision, viol¬ 
ated Const. Art. 6, § 7. 

In re Nelson, 19 S. D., 215, 102 N. W., 885. 

INDICTMENT—JOINT CHARGE—CONVICTION. 

Under an indictment charging an illegal sale of intoxicating liquor to 
several persons jointly, defendant cannot be convicted of an illegal sale to 
but one of the persons named. 

State v. Williams, 20 S. D., 492, 107 N. W., 830. 

§ 8. All persons shall be bailable by sufficient sureties, except for capital 
offenses when proof is evident or presumption great. The privilege of the writ 






Constitution of South Dakota 


25 


of habeas corpus shall not be suspended unless, when in case of rebellion or in¬ 
vasion, the public safety may require it. 

BAIL—CAPITAL OFFENSES—EVIDENT PROOF AS GREAT PRESUM- 

TION—BURDEN OF PROOF. 

1. Under Const. Art. 6, § 8, persons arrested for capital offenses, where 
the proof is not evident or the presumption great, are entitled to bail as a 
matter of right, and Rev. Code Cr. Proc. §§ 585, 586, providing that bail 
may be admitted upon all arrests for criminal offenses punishable by death 
unless the proof is evident or the presumption great, but shall be taken only 
by the Supreme Court or circuit court or a justice or judge thereof “who 
shall exercise their discretion therein,” is in conflict with the constitutional 
provision. 

2. Under Const. Art. 6, § 8, and Rev. Code Cr. Proc. § 585, 586, con¬ 
taining substantially the same provisions, and section 3 5 6, providing that 
defendant in a criminal case is presumed to be innocent, the burden is on 
the state in an application for bail, to show that the proof is evident or the 
presumption great. 

State v. Kauffman, 20 S. D., 620; 108 N. W., 246. 

§ 9. No person shall be compelled in any criminal case to give evidence 
against himself or be twice put in jeopardy for the same offense. 

EVIDENCE—ADMISSIONS. 

The admission of a letter written by accused while in jail, to his father 
and mother, and delivered unsealed to the sheriff for mailing, containing an 
implied admission of his participation in the crime with which he was 
charged, was not objectionable as violating Const. Art. 6, § 9. 

State v. Vey, 21 S. D., 612, 114 N. W., 719. 

CONVICTION, REVERSAL OF JUDGMENT—ERROR. 

When a defendant in a criminal action is convicted of the crime charged, 
and subsequently, on writ of error sued out by himself, procured in this 
court a reversal of the judgment of conviction, for errors in the charge of 
the trial court to the jury, he is not entitled to be discharged on the ground 
that he has once been put in jeopardy. 

State v. Reddington, 8 S. D., 315; 66 N. W., 465. 

RAPE—FORMER JEOPARDY. 

Defendant was convicted of rape on a female under the age of 16 years, 
and application for a new trial was denied; but inasmuch as the evidence 
showed that the female was more than 16 years old at the time when the 
offense was alleged to have been committed, the court on its own motion ar¬ 
rested the judgment, and ordered defendant to be held in custody for 10 days, 
during which period a second information was filed against him, charging the 
same offense, with the exception that the date of the commission of the of¬ 
fense was earlier. Held, that a plea of former jeopardy should be sustained. 

State v. Adams, 11 S. D., 431, 78 N. W., 353; See also State v. Caddy, 5, S. D. 167 

§ 10. No person shall be held for a criminal offense unless on the present¬ 
ment or indictment of the grand jury, or information of the public prosecutor, 
except in cases of impeachment, in cases cognizable by county courts, by jus¬ 
tices of the peace, and in cases arising in the army and navy, or in the militia 
when in actual service in time of war or public danger. Provided, that the grand 
jury may be modified or abolished by law. 

STATUTES—SEDUCTION—EVIDENCE—PROMISE OF MARRIAGE. 

1. Laws 1895, Chap. 64, authorizing the several courts of the state 
“to hear, try and determine prosecutions upon information, for crimes, mis¬ 
demeanors and offenses” theretofore triable on indictment only, embraces but 
a single subject, and is not in violation of Const., Art. 3, Sec. 21, Chap. 64, 
Laws 1895 is within Const. Art. 6, Sec. 10. 

3. On trial for seduction it appeared that defendant first met the pro¬ 
secuting witness late in the year 1894; that he frequently escorted her to 
places of public worship and social entertainments, and informed her that he 
was keeping company with no other young lady; that they had associated thus 
to the last of February, 1895, when accused temporarily left the state; that 
during his absence for five months the prosecuting witness had no other male 
attendant; and that upon his return to the state accused renewed his at¬ 
tentions, and soon afterwards accomplished her ruin. Held, that the cor¬ 
roborating evidence was sufficient to sustain the verdict that the offense was 
accomplished under a promise of marriage. 

State v. Ayres, 8 S. D., 516, 67 N. W., 611. 

§ 11. The right of the people to be secure In their persons, houses, papers 
and effects, against unreasonable searches and seizures, shall not be violated, 



26 


Constitution of South Dakota 


and no warrant shall issue but upon probable cause supported by affidavit, par* 
ticularly describing the place to be searched and the person or thing to be seized. 

§ 12. No ex post facto law, or law impairing the obligation of contracts or 
making any irrevocable grant or privilege, franchise or immunity, shall be 
passed. 

STATUTES—INSURANCE—CONTRACT. 

1. Laws 1895, Chap. 89, declaring that the avails of any policy of in¬ 
surance, “heretofore or hereafter issued upon the life of any person,” pay¬ 
able to the estate of the insured, etc., “shall, if the insured at the time of 
death reside or resided in this state, and leave or left a surviving widow or 
minor child,” to an amount not exceeding $5,000, inure to the separate use 
of the widow or husband or minor children, independently of the creditors 
of deceased, conflicts with Const. U. S. Art. 1, Sec. 10, providing that no 
state shall pass any law impairing the obligation of contracts, and also with 
Const. Art. 6, Sec. 12, containing, in substance and effect, the same provi¬ 
sion. 

2. The act of 1895, in so far as it relates to antecedent transactions, 
being retroactive, is inoperative and void. 

Skinner v. Holt, et al., 9 S. D., 427, 69 N. W. 595. 

TAXATION—ASSESSMENT. 

The Laws of 1899, p. 44, c. 41, which povide that, the total county tax 
rate shall not exceed eight mills on the dollar for all purposes violates Art. 
6, sec. 12. 

Fremont, E. & M. V. R. Co. v. Pennington County et al., 20 S. D., 270, 116 N. W. 

75. 

§ 13. Private property shall not be taken for public use, or damaged, with* 
out just compensation as determined by a jury, which shall be paid as soon as 
It can be ascertained, and before possession is taken. No benefit which may ac¬ 
crue to the owner as the result of an improvement made by any private corpo¬ 
ration shall be considered in fixing the compensation for property taken or dam¬ 
aged. The fee of land taken for railroad tracks or other highways shall remain 
In such owners, subject to the use for which it is taken. 

ROADS — TOWNSHIP ASSESSMENT — MUNICIPAL CORPORATIONS — 

OTHER CORPORATIONS. 

1. The provisions of section 13 02, Comp. Laws, imposing upon town¬ 
ship supervisors the duty of assessing the damages sustained by the owner 
of land by reason of the laying out, altering, or discontinuing any road,—the 
right to an appeal and a jury trial being given to the party who feels ag¬ 
grieved by any such determination or award of damages made by such super¬ 
visors (section 1324, Comp. Laws),—are not in conflict with the provisions 
of sec. 13, Art. 6. 

2. The purpose of the provisions of the constitution evidently is to se¬ 
cure to a party whose property is taken or damaged for public use, the 
right to a jury trial upon the question of damages, and that right is secured 
by giving to the party whose land is so taken or damaged the right to an ap¬ 
peal to a court in which such a jury trial may be had. 

3. The term “municipal corporation,” as used in chapter 94, Laws 
1891, does not include townships organized under the laws of this state. 

4. The term “other corporations” does not include townships organ¬ 
ized under the laws of this state. 

5. Chapter 94, Laws 1891, was designed to effect “municipal” and 
“other corporations” referred to in section 18, Art. 17 of the Constitution 
only, and has no application to quasi corporations organized under the laws 
of this state for political and governmental purposes. 

Town of Dell Rapids v. Irving 1 , 7 S. D., 310, 65 N. W., 149. 

EMINENT DOMAIN—INJUNCTION—ALLEGATIONS—DAMAGES. 

Under Const. Art. 6, Sec. 13, a complaint alleging that plaintiff, as 
owner of certain lots, had erected a house and made improvements on'the 
natural grade of the street, and that defendant city threatened to change 
the grade thereby damaging her property, and that defendant had not com¬ 
pensated nor offered to compensate her therefor, is sufficient to support an 
injunction. 

Under Const. Art. 6, 13, it was not necessary for plaintiff to allege that 
she would sustain irreparable injury, or that defendant was unable to res¬ 
pond in damages in order to entitle her to an injunction. 

5. The provisions of Const. Art. 6, § 13, are not controlled by Laws 
1890, Chap. 37, Art. 16, § 18, providing that, after the grade of any street 
has been established, the city shall, if they change the grade, be liable in 





Constitution of South Dakota 


27 


damages, so as to defeat plaintiff’s right to damages, where she had built 
upon and improved her lot at natural grade, and the city threatened to es¬ 
tablish a new grade. 

6. The fact that the city did not admit that its threatened acts would 
cause any damage to plaintiff did not relieve it of the obligation to take pro¬ 
per proceedings to ascertain the damages before commencing the proposed 
improvement, as required by Const. Art. 6, § 13, and Laws 1891, Chap. 94 
in execution thereof. 

Searle v. City of Lead, 10 S. D., 312, 73, N. W., 101. 

ULTRA VIRES—EMINENT DOMAIN—EASEMENT. 

Upon the theory that the act of purchasing this land for the purposes 
of a public highway, and the entering into a contract, as part consideration 
therefor, to build and maintain a fence along its limits, is ultra vires, the de¬ 
fendant interposed a general demurrer, which was overruled, and the point 
is here presented for review. In this state, and in fact generally, the public 
is authorized to acquire for tbe purposes of a road no more than an ease¬ 
ment, while the owner of the fee remains the owner of the land, subject to 
such incumbrance. Const., Art. 6, § 13; Comp. Laws, § 2783. 

Meek v. Meade County, 12 S. D., 165, 80 N. W. 182. 

DAMAGES—GRADE—MUNICIPAL LIABILITY. 

Const. Art. 6, § 13, declares that private property shall not be taken 
for public use without just compensation; and Laws 1890, Chap. 37, Art. 
16, § 18, provides that after a street grade shall have been extablished, the 
city shall be liable for damages occasioned by the change of such grade. Held 
that, where a street grade had not been established by a legal ordinance, the 
city was liable for damages sustained by a change of the grade of such street. 

Whittaker v. City of Deadwood et al., 12 S. D., 608, 82 N. W., 202. 

COMPENSATION. 

Section 13, Art. 6, Const. It will be noticed that under this provision 
“just compensation” must be made to the party whose property is taken or 
damaged. It is not sufficient that compensation be made for the property 
taken, but “just compensation” must also be made for other parts of the 
property damaged. In whatever manner, therefore, the part remaining shall 
be damaged by the taking, for such damage the party must be fully com¬ 
pensated. The question therefore in such case is, what amount of money will 
compensate the party for the loss sustained by reason of the opening of the 
highway. 

Schuler et al. v. Board of Supervisors, 12 S. D., 466, 81 N. W., 890. 

STREETS—USE—COMPENSATION. 

Const. Art. 6, § 13, providing that private property shall not be taken or 
damaged for public use without just compensation, and that the fee of land 
taken for highways, shall remain in the owner, and Article 17, § 18, provid¬ 
ing that compensation shall be made before property is taken or injured, 
do not apply to the use of the streets of a city for the purposes for which 
they have been dedicated. 

Kirby v. Citizens’ Tel. C., of Sioux Falls, 17 S. D., 362, 97 N. W. 3. 

§ 14. No distinction shall ever be made by law between resident alieni 
and citizens in reference to the possession, enjoyment or descent of property. 

§ 15. No person shall be imprisoned for debt arising out of or founded upon 
a contract. 

FINE—IMPRISONMENT. 

A fine imposed in a civil case may be inforced by imprisonment; Art. 6, 
Sec. 15, merely prohibiting imprisonment for, “debts arising out of or 
founded upon a contract.” 

City of Deadwood v. Allen, 9 S. D., 221, 68 N. W., 333. 

§ 16. The military shall be in strict subordination to the civil power. No 
aoldier in time of peace shall be quartered in any house without consent of the 
owner, nor in time of war except in the manner prescribed by law. 

§ 17. No tax or duty shall be imposed without the consent of the people 
or their representatives in the legislature, and all taxation shall be equal and 
uniform. 

TAXATION—OCCUPATIONS—EXEMPTIONS. 

Const. Art. 6, § 17, means with reference to taxes on occupations, that 
the taxes imposed shall fall alike on all persons who ar e in substantially the 
same situation; and therefore the Legislature may classify occupations for 
the purpose of taxation, and tax some and exempt others. 

In re Watson, 17 S. D., 486, 97 N. W\, 463. 



28 


Constitution of South Dakota 


LICENSE—TAXATION—CLASSIFICATION. 

Laws 1903, p. 249, c. 190, imposing a license on peddlers dealing in 
goods, wares or merchandise “except nursery stock, agricultural products, 
including milk, butter, eggs, and cheese,” and providing that the act shall 
not apply to traveling salesmen doing business with retailers or with pub¬ 
lic officers, if construed as imposing a tax on occupations under the taxing 
power, imposes a tax on all persons embraced within a class, based on a 
classification conforming to natural and well recognized lines of distinction, 
and is therefore not in conflict with Artcile 6, § 17. 

In re Watson, 17 S. D., 486, 97 N. W., 463. 

§ 18. No law shall be passed granting to any citizen, class of citizens or 
corporation, privileges or immunities which upon the same terms shall not equal¬ 
ly belong to all citizens or corporations. 

BANKING. 

The banking act of this state (chap. 27, laws 1891), providing for the 
incorporation of banking associations, in so far as the same prohibits any in¬ 
dividual or firm from transacting the banking business specified in subdivi¬ 
sion 7 of section 4 of said act, without first complying with the provisions of 
the act, is in conflict with the provisions of section 18, Art. 6. 

State v. Scougal, 3 S. D., 55, 51 N. W. 858. 

POLICE POWER. 

The statute (Laws 1903 p. 249, c. 190) if considered as an exercise of 
the police power of the state, is not in conflict with Art. 6, Sec. 18. 

In re Watson, 17 S. D., 486, 97 N. W., 463. 

PRIMARY ELECTIONS—CLASS LEGISLATION—CANDIDATES. 

1. This section requires that every prescribed rule shall have substan¬ 
tially the same operation as to all persons or corporations in substantially 
the same situation. 

2. The primary election law of 1907 p. 306, c. 139, sec, 6 is uncon- 
stitptional as class legislation in that it deprives a political party casting 
less than 100 votes in a county for its candidate for governor at the proceed¬ 
ing election, from representation in the party convention, and each party in 
calling its state convention is at liberty to determine the total number of its 
delegates, apportioning them among the several counties with reference to 
vote for candidate for governor at the last preceeding general election. 

Morrow v. Wipf, 22 S. D., - 115 N. W., 1122. 

§ 19. Elections shall be free and equal, and no power, civil or military shall 
at any time interfere to prevent the free exercise of the right of suffrage. Sol¬ 
diers in time of war may vote at their post of duty in or out of the state under 
regulations to be prescribed by the legislature. 

ELECTIONS—CANDIDATES—CERTIFICATION OF NAMES—BALLOT— 

PLEADINGS—DEMURRER. 

1. Const. Art. 6, § 19, provides that elections shall be free and equal, 
and no power, civil or military, shall at any time interfere to prevent the 
free exercise of the right of suffrage. Article 7, § 1, provides what shall 
constitute the qualifications of an elector, and declares that one possessing 
these qualifications shall be deemed a qualified elector at such election; 
held that the legislature was not inhibited by the constitution from passing an 
election law requiring the names of all candidates to be certified by law, and 
printed on an official ballot, thus, in effect, denying to electors the right of 
writing on the official ballot the name of a candidate whose name has not 
been properly certified. 

2. Where in an action for damages against the board of county com¬ 
missioners for refusing to canvass a vote, by reason whereof plaintiff was 
deprived of an office to which he claimed to have been elected, plaintiff 
failed to show that he was legally elected, a demurrer to the complaint was 
properly sustained. 

Chamberlain v. Wood, et al., 15 S. D., 216, 88 N. W., 109. 

§ 20. All courts shall be open, and every man for an injury done him in 
his property, person or reputation, shall have remedy by due course of law, and 
right and justice, administered without denial or delay. 

TRIAL—APPEALS. 

Const. Art. 6, § 20, is satisfied by a trial in a court of competent juris¬ 
diction, in which the right to jury trial, in proper cases, is afforded, as pro¬ 
vided in Section 6, and does not prohibit the legislature from prescribing in 
what cases appeal may be taken to the supreme court. 

McClain v. Williams, 10 S. D., 332, 73 N. W. 72. 

§ 21. No power of suspending laws shall be exercised unless by the legis¬ 
lature or Its authority. 





Constitution of South Dakota 


29 


§ 22. No person shall be attainted of treason or felony by the legislature. 

S 23. Excessive bail shall not be required, excessive fines imposed, nor cruel 
punishment inflicted. 

FINES—NUISANCE. 

The punishment imposed by section 13, c. 101, Laws 1890, for the first 
offense of keeping and maintaining a common nuisance is not a “cruel pun¬ 
ishment,” within the meaning of section 23, Art. 6, of the Constitution, and 
such provision is not unconstitutional on that account. 

State v. Becker, 3 S. D., 29, 51 N. W., 1019. 

§ 24. The right of citizenship to bear arms in defense of themselves and the 
state shall not be denied. 

§ 25. Treason against the state shall consist only in levying war against 
it, or in adhering to its enemies, or in giving them aid and comfort. No person 
shall be convicted of treason unless on the testimony of two witnesses to the 
same overt act, or confession in open court. 

§ 26. All political power is inherent in the people, and all free government 
is founded on their authority, and is instituted for their equal protection and 
benefit, and they have the right in lawful and constituted methods to alter or 
reform their forms of government in such manner as they may think proper. 
And the State of South Dakota is an inseperable part of the American Union, 
and the constitution of the United States is the supreme law of the land. 

§ 27. The blessings of a free government can only be maintained by a 
firm adherence to justice, moderation, temperance, frugality and virtue and by 
frequent recurrence to fundamental principles. 

ARTICLE VII. 

ELECTIONS AND RIGHT OF SUFFRAGE. 

§ 1. Every male person resident of this state who shall be of the age of 
twenty-one years and upwards, not otherwise disqualified, belonging to either 
of the following classes, who shall be a qualified elector under the laws of the 
territory of Dakota at the date of the ratification of this constitution by the 
people, or who shall have resided in the United States one year, in the state six 
months, in the county thirty days, and in the election precinct where he offers 
his vote ten days next preceding any election, shall be deemed a qualified elec¬ 
tor at such election; 

First, citizens of the United States. 

Second, persons of foreign birth who shall have declared their intention 
to become citizens conformably to the laws of the United States upon the sub¬ 
ject of naturalization. 

ELECTIONS—PRIMARY—METHOD OF NOMINATION. 

The primary election, Laws 1907, p. 286, c. 139, § 3, declares that there¬ 
after all party candidates for the elective offices named, and for the office 
of United States senator, shall be nominated, and all party delegates to poli¬ 
tical conventions, and all precinct, county, state, and national committeemen 
shall be nominated and elected at a primary election held in accordance with 
the provisions of the act; that all other nominations of such candidates shall 
be by petition in the manner provided by law. Section 6, subd. 1, provides 
that the name of no candidate for United States senator, nor of any candidate 
for member of congress, nor for any state office, including judges of the 
circuit court, shall be printed on any official ballot used at a primary election, 
unless the nominating petition in the form prescribed shall have been filed 
in the office of the Secretary of States. Held, that such act prescribed the ex¬ 
clusive mode of nominating party candidates for the offices specified therein. 

The primary election, (Laws 1907, p. 285, c. 139) though construed as 
prescribing an exclusive mode of nominating candidates for offices mentioned 
therein, is not unconstitutional as an improper infringement on an elective 
franchise, such franchise being a mere privilege, and not a natural right, 
which the Legislature may regulate to any extent not prohibited by the fed¬ 
eral and state Constitutions 

Healy et al. v. Wipf, Secretary of State, 22 S. D.-, 117 N. W., 521; See also 

under Art. 6, Sec. 19;Chamberlain v. Wood, 15 S. D., 216, 88 N. W., 109. 

§ 2. The legislature shall at its first session after the admission of the 
state into the union submit to a vote of the electors of the state the following 
question to be voted upon at the next general election held thereafter, namely; 
“Shall the word ‘male’ be stricken from the article of the constitution relating 
to elections and the right of suffrage?” If a majority of the votes cast upon 
that question are in favor of striking out said word “male,” it shall be stricken 
out and there shall thereafter be no distinction between males and females in 
the exercise of the right of suffrage at any election in this state. 

N 0 te_The above question was usbmitted to the people at the election hild in 

November, 1890, and was rejected by the following vote: For, 22,072; against, 
45,682. 




80 


Constitution of South Dakota 


§ 3. All votes shall be by ballot, but the legislature may provide for num¬ 
bering ballots for the purpose of preventing and detecting fraud. 

§ 4. All general elections shall be biennial. 

§ 5. Electors shall in all cases except treason, felony or breach of the peace 
be privileged from arrest during their attendance at elections and in going to 
and returning from the same. And no elector shall be obliged to do military du¬ 
ty on the days of elections, except in the time of war or public danger. 

§ 6. No elector shall be deemed to have lost his residence in this state by 
reason of his absence on business of the United States or of this state, or in the 
military or naval service of the United States. 

§ 7. No soldier, seaman or marine in the army or navy of the United 
States shall be deemed a resident of this state in consequence of being stationed 
therein. 

§ 8. No person under guardianship, non compos mentis or insane, shall 
be qualified to vote at any election, nor shall any person convicted of treason 
or felony be qualified to vote at any election unless restored to civil rights. 

§ 9. Any woman having the qualifications enumerated in section 1 of this 
article as to age, residence and citizenship, and including those now qualified 
by the laws of the territory, may vote at any election held solely for school pur¬ 
poses and may hold any office in this state, except as otherwise provided in this 
constitution. 

ARTICLE VIII. 

EDUCATION AND SCHOOL LANDS. 

5 1. The stability of a republican form of government depending on the 
morality and intelligence of the people, it shall be the duty of the legislature to 
establish and maintain a general and uniform system of public schools where¬ 
in tuition shall be without charge, and equally open to all; and to adopt all 
suitable means to secure to the people the advantages and opportunities of edu¬ 
cation. 

§ 2. All proceeds of the sale of public lands that have heretofore been or 
may hereafter be given by the United States for the use of public schools in 
the state; all such per centum as may be granted by the United States on the 
sales of public lands; the proceeds of all property that shall fall to the state by 
escheat; the proceeds of all gifts or donations to the state for public schools 
or not otherwise appropriated by the terms of the gift; and all property other¬ 
wise acquired for public schools, shall be and remain a perpetual fund for the 
maintenance of public schools in the state. It shall be deemed a trust fund 
held by the state. The principal shall forever remain inviolate, and may be 
increased, but shall never be diminished, and the state shall make good all losses 
thereof which may in any manner occur. 

STATE BONDS—LIMITATIONS—SCHOOL FUND. 

1. Act March 12, 1895, directing the issue and sale of state bonds to 
make good losses to the permanent school fund and to the interest and in¬ 
come funds, caused by the defalcation of the late state treasurer, is not re¬ 
pugnant to Const. Art. 13. 

2. Const, art. 8, §§ 2, 13, provide that the state shall make good all 
losses to the perpetual school fund; and that losses caused by the defalca¬ 
tion or mismanagement of the officer controlling the fund shall be a per¬ 
manent funded debt against the state, which shall not be counted as a part 
of the indebtedness to which the state is limited by Const. Art. 13, § 2. 

3. Article 8, § 3, declares that no part of the fund, “either principal 
or interest,” shall be diverted from its purpose. Held, that the state must 
make good all losses to the interest and income funds as well as to the 
permanent fund, and for this purpose the legislature may authorize the is¬ 
sue of bonds. 

Healy et al. v. Wipf, Secretary of State, 22 S D -, 117 N. W., 521; See also 

7 S. D., 42. 63 N. W. 223. See also State v. Ruth, 9 S. D., 90. 68 N. W., 189 

§ 3. The interest and income of this fund, together with the net proceeds 
of all fines for violation of state laws, and all other sums which may be added 
thereto by law, shall be faithfully used and applied each year for the benefit of 
the public schools of the state, and shall be for this purpose apportioned among 
and between all the several public school corporations of the state in propor¬ 
tion to the number of children in each, of school age, as may be fixed by law; 
and no part of the fund, either principal or interest, shall ever be diverted, even 
temporarily, from this purpose or used for any other purpose whatever than 
the maintenance of public schools for the equal benefit of all the people of the 
state. 

§ 4. After one year from the assembling of the first legislature, the lands 
granted to the state by the United States for the use of public schools may be 
sold upon the following conditions and no other: Not more than one-third of 
all such lands shall be sold within the first five years, and no more than two- 
thirds within the first fifteen years after the title thereto is vested in the state. 






Constitution of South Dakota 


31 


and the legislature shall, subject to the provisions of this article, provide for the 
sale of the same. 

The commissioner of school and public lands, the state auditor and the coun¬ 
ty superintendent of schools of the counties severally, shall constitute boards 
of appraisal and shall appraise all school lands within the several counties which 
they may from time to time select and designate for sale, at their actual value 
under the terms of sale. 

They shall take care to first select and designate for sale the most valua¬ 
ble lands; and they shall ascertain all such lands as may be of special and pe¬ 
culiar value, other than agricultural, and cause the proper subdivision of the 
same in order that the largest price may be obtained therefor. 

§ 5. No land shall be sold for less than the appraised value, and in no case 
for less than ten dollars an acre. The purchaser shall pay one-fourth of the 
price in cash and the remaining three-fourths as follows: one-fourth in five 
years, one fourth in ten years and one-fourth in fifteen years, with interest 
thereon at the rate of not less than six per centum per annum, payable annual¬ 
ly in advance; bur all such subdivided lands may be sold for cash, provided 
that upon payment of the interest for one full year in advance, the balance of the 
purchase price may be paid at any time. All sales shall be at public auction to 
the highest bidder, after sixty days’ advertisement of the same in a newspaper 
of general circulation in the vicinity of the lands to be sold, and one at the seat 
of government. Such lands as shall not have been specially subdivided shall be 
offered in tracts of not more than eighty acres and those so subdivided in the 
smallest subdivision. All lands designated for sale and not sold within four 
years after appraisal, shall be re-appraised by the board of appraisal as herein¬ 
before provided before they are sold. 

SCHOOL LANDS—CONTRACT OF SALE—DEFAULT—EXECUTION. 

The Laws of 1890, p. 296, c. 136, provide for sales in pursuance of the 
constitutional provisions, also for the issuance of “contracts of sale.” They 
declare that whenever the purchaser of any tract default in the principal or 
interest or shall violate any provisions of the contract of sale, such sale may 
be set aside. Held, that one having made a first payment and having re¬ 
ceived a contract of sale from the commissioners, had an interest in the 
lands, which was subject to execution under Rev. Code Civ. Pro. sec. 336. 

Brooke v. Eastman, Commissioner. 17 S. D., 339. 96 N. W. 699. 

§ 6. All sales shall be conducted through the office of the commissioner of 
school and public lands as may be prescribed by law, and returns of all appraisals 
and sales shall be made to said office. No sale shall operate to convey any right or 
title to any lands for sixty days after the date thereof, nor until the same shall 
have received the approval of the governor in such form as may be provided 
by law. No grant or patent for any such lands shall issue until final payment 
be made. 

§ 7. All lands, money or other property donated, granted or received from 
the United States or any other source for a university, agricultural college, nor¬ 
mal schools or other educational or charitable institution or purpose, and the pro¬ 
ceeds of all such lands and other property so received from any source, shall 
be and remain perpetual funds, the interest and income of which, together with 
the rents of all such lands as may remain unsold, shall be inviolably appropriated 
and applied to the specific objects of the original grants or gifts. The 
principal of every such fund may be increased, but shall never be diminished, 
and the interest and income only shall be used. Every such fund shall be deemed 
a trust fund held by the state, and the state shall make good all losses there¬ 
from that shall in any manner occur. 

FUNDS—APPORTIONMENT—WARRANTS. 

Laws 1890, Chap. 137, providing for the annual apportionment among 
the several educational institutions of the income of their lands (which 
lands, Const. Art. 8, § 7, provides, shall remain a perpetual fund, the in¬ 
come to be applied to the institutions to which they were granted) and pro¬ 
viding for the issuance of warrants for the amounts so apportioned, was 
not impliedly repealed by Laws 1895, Chap. 97, forbidding the creation of 
unauthorized indebtedness against the state, and providing that no warrant 
shall issue without an appropriation first made by the legislature in exact 
amount for the specific purpose. 

Heston v. Mayhew, State Auditor, 9 S. D., 501. 70 N. W. 635. 

§ 8. All lands mentioned in the preceding section shall be appraised and 
sold in the same manner and by the same officers and boards under the same lim¬ 
itations and subject to all the conditions as to price, sale and approval, pro¬ 
vided above for the appraisal and sale of lands for the benefit of public schools, 
but a distinct and separate account shall be kept by the proper officers of each 
of such funds. 

See State v. Ruth. 9 S. D., 91. 68 N. W. 189. 



32 


Constitution of South Dakota 


§ 9. No lands mentioned in this article shall be leased except for pastur¬ 
age and meadow purposes and at public auction after notice as hereinbefore 
provided in case of sale, and shall be offered in tracts not greater than one sec¬ 
tion. All rents shall be payable annually in advance, and no term of lease shall 
exceed five years, nor shall any lease be valid until it receives the approval of 
the governor. 

§ 10. No claim to any public lands by any trespasser thereon by reason of 
occupancy, cultivation or improvement thereof, shall ever be recognized; nor 
shall compensation ever be made on account of any improvements made by such 
trespasser. 

The following 1 amendment in Seiction 11, of Article 8, was submitted at the 
general election held November 8, 1904, and was adopted by a vote of 38681 to 
21424. 

§ 11. The moneys of the permanent school and other educational funds 
shall be invested only in first mortgages upon good improved farm lands with¬ 
in this state as hereinafter provided, or in bonds of school corporations within 
the state, or in bonds of the United States, or of the state of South Dakota, 
or of any organized county, township or incorporated city in said state. 
The legislature shall provide by law the method of determining the amounts of 
said funds which shall be invested from time to time in such classes of securi¬ 
ties respectively, taking care to secure continuous investments as lar as possible. 

All moneys of said funds which may from time to time be designated 
for investment in farm mortgages and in the bonds of school corporations, 
or in bonds or organized counties, townships or incorporated cities within 
this state, shall for such purpose be divided among the organised counties 
of the state in proportion to population as nearly as provisions by law to 
secure continuous investment may permit. The several counties shall hold 
and manage the same as trust funds, and they shall be and remain respon¬ 
sible and accountable for the principal and interest of all such moneys re¬ 
ceived by them from the date of receipt until returned because not loaned; 
and in case of loss of any money so apportioned to any county, such county 
shall make the same good out of its common revenue. Counties shall invest 
said money in bonds of school corporations, counties, townships or cities, or 
in first mortgages upon good improved farm lands within their limits respec¬ 
tively. The amount of each loan shall not exceed one-third the actual 
value of the lands covered by the mortgage given to secure the same, such 
value to be determined by the board of county commissioners of the county 
in which the land is situated, and in no case shall more than five thousand 
($5,000) dollars be loaned to any one person, firm or corporation, 
and the rate of interest shall not be less than five per centum per annum, and 
shall be such other and higher rate as the legislature may provide, and shall 
be payable semi-annually on the first day of January and July; Provided, that 
wherever there are moneys of said fund in any county amounting to one thous¬ 
and dollars that cannot be loaned according to the provisions of this section and 
any law pursuant thereto, the said sum may be returned to the state treasurer 
to be intrusted to some other county or counties, or otherwise invested under 
the provisions of this section. 

Each county shall semi-annually, on the first day of January and July, 
render an account of the condition of the funds intrusted to it to the auditor 
of state, and at the same time pay to or account to the state treasurer for the 
interest due on all funds intrusted to it. 

The legislature may provide by general law that counties may retain from 
Interest collected in excess cf five per centum per annum upon all said funds 
intrusted to them, not to exceed one per centum per annum. But no county 
shall be exempted from the obligation to make semi-annual payments to the 
state treasury of interest at the rate provided by law for such loans, except 
only said one per centum; and in no case shall the interest so to be paid be 
less than five per centum per annum. 

The legislature shall provide by law for the safe investment of the perma¬ 
nent school and other educational funds, and for the prompt collection of in¬ 
terest and income thereof, and to carry out the objects and provisions of this 
section. 

The following amendment In section 11. of article 8, was submitted at the general elec¬ 
tion held November 4. 1902. and was adopted by a vote of 4G.4T2 for, to 9.001 against: 

The rate of interest upon all investments of the permanent school or other 
educational funds mentioned in Section 11 of article VIII, of the constitution of 
this state is hereby changed and reduced from six per centum per annum to five 
per centum per annum, wherever the said words “six per centum per annum” 
occur in said section. That if the foregoing amendment shall be approved and 
ratified by the people at said election, as provided by article XXIII of the con¬ 
stitution, said section 11 of article VIII of the constitution shall be thereby 
amended by striking out the said words six per centum per annum wherever 
they occur in said section 11 and substituting in lieu thereof the words five 
per centum per annum.” 



Constitution of South Dakota 


33 


§ 12. The governor may disapprove any sale, lease or investment other 
than such as are intrusted to the counties. 

§ 13. All losses to the permanent school or other educational funds of this 
state which shail have been occasioned by the defalcation, negligence, misman¬ 
agement or fraud of the agents or officers controlling and managing the same, 
shall be audited by the proper authorities of the state. The amount so audited 
shall be a permanent funded debt against the state in favor of the fund sustain¬ 
ing the loss upon which not less than six per centum of annual interest shall 
be paid. The amount of indebtedness so created shall not be counted as a part 
of the indebtedness mentioned in article XIII., section 2. 

§ 14. The legislature shall provide by law for the protection of the school 
lands from trespass or unlawful appropriation, and for their defense against 
all unauthorized claims or efforts to divert them from the school fund. 

§ 15. The legislature shall make such provision by general taxation, and 
by authorizing the school corporations to levy such additional taxes as with 
the income from the permanent school fund shall secure a thorough and ef¬ 
ficient system of common schools throughout the state. 

§ 16. No appropriation of lands, money or other property or credits to 
aid any sectarian school shall ever be made by the state, or any county or muni¬ 
cipality with in me state, nor shall the state or any county or municipality within 
the state accept any grant, conveyance, gift or bequest of lands, money or other 
property to be used for sectarian purposes, and no sectarian instruction shall 
be allowed in any school or institution aided or supported by the state. 

See Synod of Dakota v. State. 2 S. D. 366. 50 N. W. 632. 

§ 17. No teacher, state, county, township or district school officer shall be 
interested in the sale, proceeds or profits of any book, apparatus or furniture 
used or to be used in any school in this state, under such penalties as shall 
be provided by law. 

ARTICLE IX. 

COUNTY AND TOWNSHIP ORGANIZATION. 

§ 1. The legislature shall provide by general law for organizing new coun¬ 
ties, locating the county seats thereof and changing county lines; but no new 
counties shah be organized so as to include an area of less than twenty-four 
congressional townships, as near as may be without dividing a township or 
fractional township, nor shall the boundaries of any organized county be 
changed so as to reduce the same to a less area than above specified. All changes 
in county boundaries in counties already organized, before taking effect, shall 
be submitted to the electors of the county or counties to be affected thereby, at 
the next general election thereafter and be adopted by a majority of the votes 
cast in each county at such election. Counties now organized shall remain as 
they are unless changed according to the above provisions. 

COUNTY ORGANIZATION—CHANGE OF BOUNDARY LINES—SPECIAL 

ACTS. 

Const. Art. 9, § 1, though mandatory, prescribes no penalty for failure 
to perform such duty, and hence such section does not render invalid a 
special act providing for the change of boundaries of a specified county. 

Stuart et al. v. Kirley, 12 S. D., 246. 81 N. W., 147. 

COUNTY—BOUNDARIES—SUBMISSION TO VOTE—NOTICE OF. 

Laws 1897, c. 41, § 1, provides that the question of changing and defin¬ 
ing the boundaries of Stanley county shall be submitted to the voters of 
such county, and Section 2 requires the board of county commissioners to 
give notice of such submission. Held, that the constitutional provisions as 
to elections applied to organized counties only, and electors of unorganized 
counties proposed to be included in Stanley county were not entitled to vote 
on such question. 

Stuart et al. v. Kirley et al, 12 S. D., 245. 81 N. W., 147. 

COUNTY SEAT—TEMPORARY—MAJORITY VOTE. 

Under Rev. Pol. Code sections 750-774 relating to organization of coun¬ 
ties and providing for a temporary location of county seat until the next 
general election thereafter, the selection of such county seat is temporary, 
and the selection is not made by a majority vote within the Constitution; 
the county board must submit the question at a general election. 

State ex, rel. Simons v. Nyquist et al. 22 S. D. 116 N. W. 754. 

§ 2. In counties already organized where the county seat has not been lo¬ 
cated by a majority vote, it shall be the duty of the county board to submit the 
location of the county seat to the electors of said county at a general election. 
The place receiving a majority of all votes cast at said election shall be the 
county seat of said county. 

Const— 3 




34 


Constitution of South Dakota 


COUNTY ORGANIZED—SEAT—MAJORITY VOTE—MANDAMUS—STA¬ 
TUTES. 

1. A citizen of the United States who is a resident free holder, tax¬ 
payer and elector of the county has such interest in the matter as entitles 
him, as relator, to apply for a writ of mandamus to compel such board to 
perform the duty prescribed by section 2. 

2. Laws 1890 Chap. 64, Sec. 1, in so far as it requires the present¬ 
ment of a petition to the board of county commissioners in cases where the 
county seats have not been located by a majority vote, in order to entitle 
or require such board to act, is in conflict with sec. 2. 

State ex. rel. Adkins v. Lien et al. 9 S. D., 297. 68. N. W. 748. 
r~ 

MAJORITY VOTE—RESUBMISSION. 

In counties in which the county seat has not been located by a majority 
vote, the county board shall submit the location thereof at a general elec¬ 
tion, and “the place receiving a majority of all votes cast at said election 
shall be the county seat,” a majority of the votes cast on such question was 
insufficient to effect a change of location when it was less than a majority 
of all the votes at such general election. 

Adkins v. Lien et al., County commissioners, 10 S. D. 436. 73 N. W. 959. 

Laws 1890, Chap. 64, declares that, if no place shall receive a majority 
of votes, the question of the location of the county seat shall not be resub¬ 
mitted before the expiration of four years. Held, that such provision was not 
in conflict with the Constitution, and hence, where an organized county 
failed to select a place for its county seat by a majority vote in 189 6, the sel¬ 
ection of the county seat in 1898 was invalid. Corson, J., dissenting. 

State ex rel. Casper v. Porter et al, 13 S. D., 126. 82 N. W. 415. 

5 3. Whenever a majority of the legal voters of any organized county shall 
petition the county boaru to change the location of the county seat which has 
once been located by a majority vote, specifying the place to which it is to be 
changed, said county board shall submit the same to the people of said county at 
the next general election, and if the proposition to change the county seat be 
ratified by two-thirds of the votes cast at said election, then the county seat 
shall be changed, otherwise not. A proposition to change the location of the 
county seat of any organized county shall not again be submitted before the ex¬ 
piration of four years. 

The above section was amended by popular vote of 36,436 for, to 14,612 against, at 
the general election held November 4, 1902, to read as follows : 

§ 3. Whenever a majority of the legal voters of any organized county shall 
petition tno board to change the location of the county seat which has once been 
located by a majority vote, specifying the place to which it is to be changed, said 
board shall submit the same to the people of the said county at the next general 
election, and if me proposition to change the county seat be ratified by two-thirds 
of the votes cast at said election (except as hereinafter provided) then the county 
seat shall b > changed, otherwise not; Provided , however, that in cases where the 
county seat is not located at a railroad station and it is proposed to remove the 
same to the railroad station, then the proposition to change the county seat may 
be ratified by three-fifths of the votes cast at said election, upon the question of 
such removal and in such case if the proposition to change the county seat be 
ratified by three-fifths of the votes cast at said election upon the question of such 
removal then the county seat shall be changed, otherwise not. 

A proposition to change the location of the county seat of any organized 
county snail not again be submitted before the expiration of four years. 

COUNTY SEAT—REMOVAL. 

A special act of the territorial legislature of 1885 authorizing the re¬ 
moval, by majority vote^ of a county seat previously located by the vote of 
two thirds of all the qualified electors is held to be superceeded by, because 
repugnant to sec. 3, Art. 9. 

Remington v. Higgins. 6 S. D. 313. 60 N. W. 73. 

COUNTY SEAT—PETITION FOR REMOVAL—IRREGULAR PROCEED¬ 
INGS—RECORDS—MANDAMUS. 

Where a taxpayer and resident of a county presented a petition for a 
change of the county seat to the board of supervisors, and the board met 
to consider the same on a certain day, and found that the petition was 
signed by a majority of the legal voters of the county, which finding the 
auditor was directed to record, but which he failed to do, and the board 
thereafter willfully, falsely, and fraudulently refused to enter such finding 
in its records, with intent to falsify the same, the petitioner was entitled to 
maintain mandamus against the board to compel it to amend the record 
according to facts under Rev. Code Civ. Proc. § 764, providing that man- 




Constitution of South Dakota 


35 


damus may be maintained to compel the performance by any board or person 
of an official duty enjoined by law. 

State ex. rel. Andrews v. Boyden et al., County Commissioners et al, 18 S. D., 
288. 100 N. W. 763. 

COUNTY SEAT—CHANGE OF LOCATION—SUBMISSION TO VOTE. 

At any time before a valid order was entered granting a petition filed 
under the constitutional provision, a signer of the petition had a right to 
withdraw his name, after which it could not be counted to make up the speci¬ 
fied number. 

State ex rel. Andrews v. Boyden, 18 S. D. 388. 108 N. W. 897. 

§ 4. The legislature shall provide by general law for organizing the coun¬ 
ties into townships, having due regard for congressional township lines and 
natural boundaries, and whenever the population is sufficient and the natural 
boundaries will permit, the civil townships shall be co-extensive with the con¬ 
gressional townships. 

§ 5. In each organized county at the first general election held after the ad¬ 
mission of the State of South Dakota into the union, and every two years there¬ 
after, there shall be elected a clerk of the court, sheriff, county auditor, register 
of deeds, treasurer, state’s attorney, surveyor, coroner, and superintendent of 
schools, whose terms of office respectively shall be two years, and except the clerk 
of the court, no person shall be eligible for more than four years in succession 
to any of the above named offices. 

§ 6. The legislature shall provide by general law for such county, town¬ 
ship and district officers as may be deemed necessary, and shall prescribe the 
duties and compensation of all county, township and district officers. 

SPECIAL ACTS—CLERKS OF COURTS—COMPENSATION. 

A law operating upon all and in like manner affecting every person in 
this state, who is brought within the conditions and relations for which it 
provides, is not repugnant to a constitutional provision, which requires that 
all laws relating to courts shall be of general and uniform operation through¬ 
out the state. The laws of 1890, c. 81, sec. 10 relating to compensation of 
clerks of courts is not in conflict with Art. 9 sec. 6. 

Minnehaha County v. Thorne. 6 S. D., 449. 61 N. W. 688. 

ELECTIONS—NOMINATION BY PARTY CONVENTION. 

The caucus law (Laws 1905, p. 145, c. 107) provides that all party 
nominations of candidates for county officers shall be made as provided for 
in the statute. Section 5 provides when county conventions for the purpose 
of nominating candidates for county officers shall be held. The statute 
makes no provision for commissioner district conventions. Prior to the 
statute. Rev. Pol. Code, § 810, provided that the different counties of the 
state should be divided into commissioner districts, and the commissioners 
selected from the districts, and that all conventions for the nomination of 
county commissioners should be held by the district from which the com¬ 
missioner was to be selected, and only voters of that district to participate 
in the convention. Const. Art. 9, § 6, declares that the Legislature shall pro¬ 
vide by general law for county officers, and by Rev. Pol. Code, §§ 809-865, 
county government is intrusted to a board of county commissioners. Held, 
that the statutory rule regarding party nominations for the office of county 
commissioner was changed by the act of 1905, and a republican county con¬ 
vention alone could make republican party nominations for such office. 

State ex rel. Long et al v. Rexford, County Auditor. 21 S. D. 86. 109 N. W. 

216. 

The following amendment to Section 7, Article IX, was submitted at the gen¬ 
eral election that was held November 6, 1906, and was adopted by a vote of 
35,806 for, and 15,971 against: 

§ 7. All county, township and district officers shall be electors in the coun¬ 
ty, township or district in which they are elected, provided that nothing in 
this section shall prevent the holding of school offices by any person as provided 
in section 9, article VII; and provided, further that the legislature shall 
have authority to prescribe additional qualifications for superintendent of 
schools, not inconsistent herewith. 

ARTICLE X. 

MUNICIPAL CORPORATIONS. 

§ 1. The legislature shall provide by general laws for the organization 
and classification of municipal corporations. The number of such classes shall 
not exceed four, and the powers of each class shall be defined by general laws, 
so that no such corporations shall have any powers, or he subject to any re¬ 
strictions other than those of all corporations of the same class. The legis¬ 
lature shall restrict the power of such corporations to levy taxes and assessments, 
borrow money and contract debts, so as to prevent the abuse of such power. 




36 


Constitution of South Dakota 


CITIES—ORGANIZATION—CHARTERS—RE-ORGANIZATION. 

Const. Art. 10, § 1, requiring the legislature to provide by general law 
for the organization of cities, and Laws 1890, Chap. 37, providing for a sys¬ 
tem by which cities may surrender their charters and organize under a gen¬ 
eral law as provided therein, do not repeal the special charter of a city fail¬ 
ing to organize under such law. 

Tripp V. City of Yankton, 10 S. D., 516. 74 N. W. 447. 

CITY COUNCIL—TAX LEVY—AMOUNT. 

Laws 1890, Chap. 37, Art. 10, § 7, declares that a city council shall at 
the first regular meeting in September, or within 10 days thereafter, levy a 
tax for general purposes sufficient to meet the expenses of the year, based 
upon an estimate furnished by the city auditor, or a committee of the city 
council. Held, that the legislature not having restricted the powers of muni¬ 
cipal corprations, as directed by the Constitution, a city had authority to 
make a levy of 15 mills for general purposes, 5 mills for interest and sinking 
fund, and 10 mills for school purposes in 1890. 

Henderson v. Hughes County et al, 13 S. D., 576. 83 N. W., 682. 

§ 2. Except as otherwise provided in this constitution, no tax or assess¬ 
ment shan be levied or collected, or debts contracted by municipal corporations, 
except in pursuance of law, for public purposes specified by law; nor shall 
money raised by taxation, loan or assessment, for one purpose ever be diverted 
to any other. 

ARTESIAN WELLS—TAXATION. 

Artesian wells sunk by townships at the expense of the taxpayers, as 
authorized by Laws, 1891, Chap. 80, and laws 1895, Chap. 103,—the water 
to be placed in tanks in the public highways, to supply the general public 
for watering stock and other domestic uses, and to be used for irrigation 
purposes,—is for a public purpose, within Const. Art. 10. 

Miles v. Benton Township et al, 11 S. D., 450. 78 N. W. 1004. 

EXPENDITURE—LIMIT OF—TOWN SUPERVISORS—POWERS. 

Town supervisors have no authority to appropriate or expend in the con¬ 
struction or repair of highways any funds raised for ordinary town charges. 

Aldrich et al., v. Collins, Supervisor, et al., 3 S. D., 154. 52 N. W. 854. 

TAX LEVY—TO SATISFY JUDGMENT. 

Where the demand upon a city is that it levy a sufficient tax to pay a 
judgment outstanding against the city, and the alternative writ follows the 
demand, the court may upon hearing, issue its premptory writ, commanding 
the city to levy the full amount of the tax it is authorized by its charter to 
levy, and to pay upon such judgment any surplus in any city fund remaining 
after the current expenses of the city for the fiscal year have been paid. Such 
direction to pay upon the judgment such surplus funds is not a violation of 
sec. 2, Art. 10. 

Howard v. City of Huron et al. 6 S. D., 180. 60 N. W. 803. See also Howard v. 

City of Huron et al. 5 S. D., 539. 

CITY TAXES—WARRANTS—DIVERSION OF FUNDS. 

Respondent contends that, if these statutory provisions, (Chap. 21, 
Laws 1891), allow the city taxes of one year to be paid in warrants of pre¬ 
ceding years, they violate section 2 of Article 10 of the Constitution. This 
he claims on the theory that the tax assessed for the purpose of meeting the 
expenses of one year would be thus diverted to the payment of the expenses 
of a different year. We do not think this provision can be fairly so inter¬ 
preted. We think the term “purpose” is so used with reference to the speci¬ 
fic objects for which money may be raised by taxation. . 

Western Town Lot Co., v. Lane, 7 S. D., 604. 65 N. W. 17. See also 7 S. D , 

5; 62 N. W. 982. 

PUBLIC REVENUE—PARTICULAR FUNDS. 

Comp. Laws, §§ 1671-1679, inclusive. As the effect of this law is to 
keep the public revenue in the particular fund to which it belongs, and to 
prevent any diversion of the same or application thereof to a purpose other 
than that for which the money was raised by taxation, loan or assessment, 
we find its various provisions in perfect harmony with section 2 of Article 10 
of the Constitution of this state. 

State ex rel. City of Huron v. Campbell, 7 S. D., 572. 64 N. W. 1125. 

INDEBTEDNESS—WARRANTS—VALIDITY OF. 

A city has no authority to incur indebtedness for expense of a cam¬ 
paign to secure the selection of the city as the capital of the state. Warrants 
issued in payment of such expenses are void. Warrants issued by a city for 
current expenses, after the constitutional indebtedness has been reached, but 





Constitution of South Dakota 


37 


in anticipation of a tax already levied, are valid to the extent of the taxes 
levied. > 

Shannon et al. v. City of Huron, 9 S. D., 356. 69 N. W. 598. 

§ 3. No street passenger railway or telegraph or telephone line shall be 
constructed within the limits of any village, town or city without the consent 
of its local authorities. 

TELEPHONE — RIGHTS OF CITY COUNCIL — RIGHTS OF CORPORA¬ 
TIONS 

1. This section limits the power of the legislature in granting rights 
to telephone companies, but does not grant legislative power to municipal 
councils; and though the legislature may not authorize the construction of 
any telephone system in any city without the latter’s consent, the city has no 
power to impose any conditions or establish any regulations other than those 
permitted by the legislature. 

2. Under Rev. Civ. Code, sec. 55 4, a domestic corporation engaged in 
building and operating a telephone system may construct its lines over pub¬ 
lic grounds, streets and highways, subject to control of proper municipal 
authorities as provided by the Constitution Art. 10, sec. 3, subject to Art. 6 
sec. 12. 

Missouri River Telephone Co., v. City of Mitchell, 22 S. D.- 116 N. W. 67. 

ARTICLE XI. 

REVENUE AND FINANCE. 

The following amendment to Section 1, Article XI, was submitted at the 
general election that was held November 6, 1906, and was adopted by a vote of 
33,285 for, and 19,895 against: 

§ 1. The legislature shall provide for an annual tax, sufficient to defray 
the estimated ordinary expenses of the state for each year, not to exceed in any 
one year two mills on each dollar of the assessed valuation of all taxable prop¬ 
erty in the state, to be ascertained by the last assessment made for state and 
county purposes. 

And whenever it shall appear that such ordinary expenses shall exceed 
the income of the state for such year, the legislature shall provide for levying 
a tax for the ensuing year, sufficient, with other sources of income, to pay the de¬ 
ficiency of the preceding year together with the estimated expenses of such 
ensuing year. And for the purpose of paying the public debt, the legislature 
shall provide for levying a tax annually, sufficient to pay the annual interest 
and the principal of such debt within ten years from the final passage of the 
law creating the debt, provided that the annual tax for the payment of the 
interest and principal of the public debt shall not exceed in any one year two 
mills on each dollar of the assessed valuation of all taxable property in the state 
as ascertained by the last assessment made for the state and county purposes. 

Provided, that for the purpose of establishing, installing, maintaining 
and operating a hard fiber twine and cordage plant at the state penitentiary 
at Sioux Falls, South Dakota, the legislature shall provide for a tax for the 
year 1907 of not to exceed one and one-half mills on each dollar of the 
assessed valuation of all taxable property in the state, as ascertained by the 
last assessment made for state and county purposes. 

STATE TAXATION—LIMITATIONS — PUBLIC DEBT—LEGISLATIVE 

POWERS. 

1. Const. Art. 11, § 1, relates to three distinct items of taxation: (1) 

The annual tax for “the estimated ordinary expenses of the state;’’ (2) tax¬ 
ation to pay deficiencies from preceeding years; (3) taxation to pay the pub¬ 
lic debt. 1 

2. The legislature is limited to a two-mill tax for the first and third 
items mentioned; but when a deficiency is shown to exist, resulting from the 
excess of ordinary expenses over the fund available for that purpose; the 
legislature has power to levy an assessment sufficient to meet the deficiency, 
without regard to the two-mill limitation, and the money raised for such 
deficiency must be used exclusively for its payment, and cannot be diverted 
to any other use. 

3. Const. Art. 11, section 8, provides that “no tax shall be levied, ex¬ 
cept in pursuance of law, which shall distinctly state the object of the same, 
to which the tax only shall be applied.’’ Art. 12, section 2, provides that 
“the general appropriation bill shall embrace nothing but appropriations for 
ordinary expenses of the executive, legislative, and judicial departments of 
the state, the current expenses of state institutions, interest on the public debt 
and for common schools. All other appropriations shall be made by separate 
bills each embracing but one object, and shall require a two-thirds vote of 
all the members of each branch of the legislature.” Held, that the two-mill 






38 


Constitution of South Dakota 


limitation applies only to the items embraced within the “general appropria¬ 
tion bill,” which items constitute the “ordinary expenses,” within the mean¬ 
ing of Article 11, section 1, but as to “al other appropriations” to meet the 
extraordinary expenses of the state the legislative power is controlled only by 
their sense of justice, as expressed by a two-thirds vote of all the members 
of each house. 

4. A law providing for the levy of a tax for an extraordinary expense 
must clearly state its object, and the tax so raised cannot be diverted to any 
other use. 

In re Limitation of Taxation, 3 S. D., 456. 54 N. W. 417. 

§ 2. All taxes to be raised in this state shall be uniform on all real and 
personal property, according to its value in money, to be ascertained by such 
rules of appraisement and assessment as may be prescribed by the legislature 
by general law, so that every person and corporation shall pay a tax in propor¬ 
tion to the value of his, her or its property. And the legislature shall provide 
by general law for the assessing and levying of taxes on all corporation prop¬ 
erty, as near as may be by the same methods as are provided for assessing and 
levying of taxes on individual property. 

TAXATION—EXEMPTIONS—STATUTES—DEDUCTION OF INDEBTED¬ 
NESS. 

1. Construing Art. 11, Sec. 2, 4, 5, 6, 7. Held that Act March 9, 
1891, § 18, in providing for the deduction of indebtedness from the amount 
of credits and personal property, and section 19, prescribing what indebted¬ 
ness should not be deducted and the manner of verification of deductions, 
while no provision is made for deducting the same from the value of the 
real estate of tax payers, provide for unequal taxation, are in conflict with 
the Constitution, and void. 

2. Such sections of the revenue act also produce inequality and want 
of uniformity in taxation, and are unconstitutional, in that they permit the 
deduction from personal property of indebtedness held within the state 
but permit no deduction of indebtedness held without the state. 

In re Assessment and Collection of Taxes. 4 S. D., 6. 54 N. W. 810. 

LIQUOR LICENSE—POLICE REGULATION—FEE. 

Laws 1897, Chap. 72, provides for an annual license fee of $400, be¬ 
ginning July 1st, to be paid in advance to the county treasurer by retail- 
liquor dealers, or a pro rata sum in case application is made after July 1st, 
all licenses expiring the following June 3 0th. It requires each applicant to 
file an approved bond with the county treasurer, and allows the authorities 
of a city, organized town, or township to levy and collect and additional 
license, which must be paid before the applicant can engage in the traffc. 
Such authorities may refuse to grant a license if they deem the applicant 
unfit, and in that event the money paid to the county treasurer shall be re¬ 
turned to the applicant on the warrant of the board of county commissioners. 
Section 7 provides that all such moneys received by a county treasurer shall 
by him be placed to the credit of the general fund of the county, and, on 
each license granted, he “shall transmit the sum of $150 to the state treas¬ 
urer,” which shall be placed to the credit of the general fund of the state. 
Held, that the statute is a police regulation, and the license fee is not there¬ 
fore a tax, within Const. Art. 11, requiring uniformity of taxation. 

State ex rel. Grigsby, Atty. Gen. v. Buechler, County Treasurer, 10 S. D. 
156. 72 N. W. 114. 


ARTESIAN WELLS—ASSESSMENT FOR. 

Laws 1889, Chap. 14 § 15, subd. 3. providing for a direct artesian well 
assessment on lands for construction of such a well and water courses, to be 
adjusted “with reference to the relative distance of such lands from the 
well itself and the water courses,” violate Art. 11, Sec. 2. 

Turner v. Hand County, 11 S. D., 348. 77 N. W. 589. 


TAXATION—VALUE. 

1. There are no limitations on the power of the legislature except 
such as are imposed by the state and federal Constitutions, and no legisla¬ 
tive act should be declared unconstitutional unless it palpably conflicts with 


some principal of constitutional law. 

2. Const. Art. 11, § 2, construed with Art. 6, Sec. 17, and Art. 11, sec. 
3, requires all property not expressly exempted by the Constitution to be 
taxed according to its value, but does not by implication preclude other meth¬ 
ods of taxation, such as taxes on occupations. 

In re Watson, 17 S. D., 186. 97 N. W. 463. See also sec. 7. In re Construc¬ 

tion Revenue law. 2 S. D., 58; 48 N. W. 813. 

§ 3. The power to tax corporations and corporate property shall not be 
surrendered or suspended by any contract or grant to which the state shall be 

a party. 





Constitution of South Dakota 


39 


§ 4. The legislature shall provide for taxing all moneys, credits, invest¬ 
ments in bonds, stocks, joint stock companies, or otherwise; and also for tax¬ 
ing the notes and bills discounted or purchased, moneys loaned and all other 
property, effects or dues of every description, of all banks and of all bankers, 
so that all property employed in banking shall always be subject to a taxation 
equal to that imposed on the property of individuals. 

§ 5. The property of the United States and of the state, county and munici¬ 
pal corporations, both real and personal shall be exempt from taxation. 

EXEMPTION. 

Where a city exempted from taxation a tract of land belonging to a 
townlot company, and used and maintained the same as a city park, the ex¬ 
emption was not invalid, under Const. Art. 11, §§ 5-7, since the transac¬ 
tion in substance amounted to an exercise of the authority given by Laws 
1890, Chap. 37, Art. 5, § 1, Subd. 44. 

Henderson v. Hughes County et al, 13 S. D. 577. 82 N. W. 682. 

HOMESTEAD—CHANGE OF ENTRY—REJECTION. 

Where a homestead entry on government land was changed into a 
cash entry, which was suspended, and the proof of residence finally rejected, 
by the United States land department, necessitating the making of new proof 
thereafter, on which the patent issued, the land did not become taxable 
under state authority until the second proof was made, leaving nothing 
further to be done by the purchaser to perfect his equitable title and his 
right to a patent; and a sale of the land for taxes theretofore levied was 
void. 

Duncan v. Newcomer, 9 S. D., 375. 69 N. W. 580. 

§ 6. The legislature shall, by general law, exempt from taxation, property 
used exclusively for agricultural and horticultural societies, for school, religious, 
cemetery and charitable purposes, and personal property to any amount not ex¬ 
ceeding in value two hundred dollars for eacn individual liable to taxation. 

NON-EXEMPTION. 

A building owned by a charitable institution, but part of which is used 
for a store, cannot be exempt, though the rents are used for charitable 
purposes. 

State ex rel. Hayes, State’s Atty., v. Board of Equalization for Lawrence 
County et al, 6 S. D., 219. 92 N. W. 16. 

§ 7. All laws exempting property from taxation, other than that enumerated 
in sections 5 and 6 of this article, shall be void. 

CREDITS—DEBTS—DEDUCTION OF INDEBTEDNESS. 

1. Act March 9, 1891, §§ 18, 19, allowing persons, in listing credits 
for taxation, to deduct from the gross amount thereof all bona fide indebed- 
ness, without specifying whether the debts must be owing within or with¬ 
out the state, and further providing that deductions from the amount of 
personal property shall be allowed of such indebtedness only as is due 
within the state; and making no provision for deducting indebtedness from 
the value of real estate, are in contravention of Const. Art, 11, § 2, and 
Section 4. 

2. Such sections, in so far as they allow deductions of indebtedness 
from the value of property liable to taxation, are a violation of Const. S. D. 
Art. 11,§7. 

In re Construction of Revenue Law. Sec. 18, 19, 2 S. D., 58. 48 N. W. 813. 

CREDITS—ASSESSMENT OF 

The second section of Article 9 of the Constitution of Pennsylvania 
provides: “All laws exempting property from taxation, other than the prop¬ 
erty above numerated, shall be void.” The exception of “notes or bills for 
work or labor done,” is void under this provision, and drops out of the 
act of 1885. The exception falls, but the act stands. It will be the duty of 
the assessors to assess and return such bills or notes the same as othei 

moneyed securities in the hands of individuals. 

In re Assessment and Collection of Taxes, 4 S. D., 20. 54 N. W. SIS, 832. 

EXEMPTION—TAX RECEIPT—EVIDENCE. 

Laws 1890, p. 318, c. 150, § 3, providing that possession of a tax re¬ 
ceipt shall be conclusive evidence that all prior taxes on the property have 
been paid, and shall be a bar to their collection, is repugnant to Const. Art. 
11, § 7, Haney P. J., dissenting in part. 

Harris v. Stearns, County Treasurer. 17 S. D. 439. 97 N. W. 361. See also 

Harris v. Stearns. 108 N. W. 247. (Reversal.) 

8 8. No tax shall be levied except in pursuance of a law, which shall dis¬ 
tinctly state the object of the same, to which the tax only shall be applied. 

In re Limitation of Taxation, 3 S. D. 456. Cap. 54 N. W. 417. 




40 


Constitution of South Dakota 


TAX LEVY—MUNICIPAL—USE. 

The counsel for the city have called our attention to two provisions 
in the state Constitution which they insist settle the question in their favor. 
These are section 8 of Article 11, and sec. 8, Art. 10. The error in the coun¬ 
sel’s position is that the city is authorized to levy a 10-mill tax for city pur¬ 
poses, not a specific tax for one designated municipal purpose, and a specific 
tax for another, etc. Neither the Constitution, laws of the state, nor the 
charter so provide. The charter declares the city may levy a tax not exceeding 
10 mills on the dollar for municipal purposes. The Constitution declares that 
“no tax shall be levied, except in pursuance of a law, which shall distinctly 
state the object,” etc. When, therefore, the city levies a tax for municipal pur¬ 
poses not exceeding 10 mills on the dollar, it does so by authority of law; 
and the object is distinctly stated, namely, municipal purposes; and the 
tax so levied cannot be used for other than municipal purposes. To give 
these constitutional provisions a more limited or restricted construction 
would clearly be against the evident intention of the framers of the consti¬ 
tution, and lead to embarassing result 

Western Town Lot Co. v. Lane, 7 S. D., 5. 62 N. W., 982. Western Town Lot 

Co. v. Lane, 7 S. D., 604. 65 N. W. 17. See Art. 11, Sec. 1. 

§ 9. All taxes levied and collected for state purposes shall be paid into the 
state treasury. No indebtedness shall be incurred or money expended by the 
state, and no warrant shall be drawn upon the state treasurer except in pursuance 
of an appropriation for the specific purpose first made. The legislature shall 
provide by suitable enactment for carrying this section into effect. 

S. D. 318 ; Stanton vs. State, 5 S. D. 515 

WARRANTS—WHEN AUDITOR MAY DRAW. 

W T hen an appropriation made by the legislature for any specific pur¬ 
pose has been exhausted, the action of the auditor in refusing to draw fur¬ 
ther warrants for that specific purpose is proper and right. 

Collins v. State, 3 S. D„ 18. 51 N. W. 776. 

ACTION AGAINST STATE—SUBSISTENCE FURNISHED STATE FORCES 

—SUPPRESSING INSURECTION—POWERS OF GOVERNOR. 

1. One having furnished subsistance for troops called into service 
by the governor. Held, that a claim to recover for such subsistence cannot 
rest upon contractual rights, for the creation of such rights in such manner 
is expressly forbidden by the Constitution. 

2. The power to adjust and pay such claim is in the legislature alone, 
and is only saved to it by the specific and exceptional authority conferred 
upon it by the concluding portion of section 3, Art. 12: “The legislature 
may make appropriations for expenditures incurred in suppressing insurrec¬ 
tion of repelling invasion. 

Stanton v. State, 5 S. D., 515. 59 N. W. 738. 

PUBLIC PRINTING—CONTRACT BY STATE—INCURRING INDEBTED¬ 
NESS—APPROPRIATIONS. 

1. Chapter 99, Laws 1891, divides the public printing of the state into 
classes, and directs the secretary of state as ex officio commissioner of public 
printing, to advertise for bids for doing the same, and to make contracts 
with the best, and lowest bidders for doing such printing as the state may 
require. Held, that a contract so made does not “incur an indebtedness on 
the part of the state, within the meaning of section 9, Art. 11. 

2. Such contract imposes no obligation upon the state to have any 
work done, but, in effect, simply designates the parties who are entitled to 
do whatever work of the several classes the state may require, and fixes the 
compensation therefore, if any shall be so required and done. 

3. Except as made by the Constitution itself, the legislative depart¬ 
ment alone has power to make appropriations from the state treasury for 
the payment of state indebtedness. 

4. The primary though and purpose of said section 9, Art. 11, was to 
confine the creation of indebtedness to such subjects and to such amounts 
as were expressely approved by that department of the government which 
would be required to provide for its payment. 

Carter v. Thorson, Secretary of State. 5, S. D., 474. 59 N. W. 469. 

INDEBTEDNESS—SPECIAL APPROPRIATIONS—MISUSE OF—BURDEN 

OF PROOF 

1. Under Const. Article 11, § 9, and laws 1890, Chap. 108, providing 
that, where appropriations are made for periods longer than one year, the 
expenditures for one year shall never exceed the proportion which one'year 
bears to the whole period,—the appropriation Act of March 9, 1891 (Laws 
1891, Chap. 6), appropriating (Sections 1 and 11) for fuel and lights for 
the Agricultural College $2,000 per year “for the ensuing two years,” and 




Constitution of South Dakota 


41 


(Section 31) increasing each item therein, pro rata, to cover the period 
from March 8, to June 30, 1893 inclusive, authorized the agents of the State 
to procure fuel and light for the use of such college, at the expense of the 
state, to an amount not exceeding $2,000 during the period from March 8, 
1891, to March 8, 1892, and not exceeding $2,620 during the period, from 
March 8, 1892, to and including June 30, 1893. 

2. Plaintiff, during one of the periods, specified in the appropriation 
act of March 9, 1891 (Laws 1891, Chap, 6, § 11), furnished fuel for the 
Agricultural College to a certain amount, on request of its officers. During 
such period, the entire indebtedness incurred by such officers for fuel and 
lights aggregated an amount, including the sum due plaintiff, less than the 
amount appropriated for such purpose for such period. Held, that such in¬ 
debtedness to plaintiff constituted a legal claim against the state, the validity 
of which was not impaired by the misuse of such appropriation in the pay¬ 
ment of indebtedness contracted during another period. 

3. In an action against the state to recover for fuel furnished the 
Agricultural College on request of its officers, the burden was on the plain¬ 
tiff to show that the indebtedness so contracted was incurred at a time 
when the agents of the state were auhorized to make such purchase, in 
view of the constitutional provisions Article 11, § 9, and Article 12, § 3. 

Van Dusen et al. v. State. 11 S. D., 318. 77 N. W. 201. 

§ 10. The legislature may vest the corporate authority of cities, towns and 
villages, with power to make local improvements by special taxation of con¬ 
tiguous property or otherwise. For all corporate purposes, all municipal corpo¬ 
rations may be vested with authority to assess and collect taxes; but such tax 
shall be uniform in respect to persons and property within the jurisdiction of 
the body levying the same. 

§ 11. The making of profit, directly or indirectly, out of state, county, city, 
town or school district money, or using the same for any purpose not author¬ 
ized by law, shall be deemed a felony and shall be punished as provided by law. 

FUNDS—DEPOSIT—BOND LIABILITY OF OBLIGOR. 

1. A general deposit by a county treasurer, of county funds, subject 
to check is not a “loan” within the statutory or constitutional inhibition 
against the loaning of county funds, with or without interest. 

2. On a bond conditioned on the repayment' by a bank of county 
funds deposited by the county treasurer, the obilgors are liable for the re¬ 
payment of the amount of a certificate of deposit given the obligee for money 
deposited with the bank before the execution of the bond, and subsequently 
redelivered to the bank, and the amount of the crtificate credited to the 
obligee. 

Allibone, Treasurer, v. Ames et al. 9 S. D., 74. 68 N. W. 165. 

§ 12. An accurate statement of the receipts and expenditures of the pub¬ 
lic moneys shall be published annually, in such manner as the legislature may 
provide. 

ARTICLE XII. 

PUBLIC ACCOUNTS AND EXPENDITURES. 

§ 1. No money shall be paid out of the treasury except upon appropriation 
by law and on warrant drawn by the proper officer. 

§ 2. The general appropriation bill shall embrace nothing but appropria¬ 
tions for ordinary expenses of the executive, legislative and judicial depart¬ 
ments of the state, the current expenses of state institutions, interest on the 
public debt, and for common schools. All other appropriations shall be made by 
separate bills, each embracing but one object, and shall require a two-thirds vote 
of all the members of each branch of the legislature. 

See Art. 9, Sec. 1. 

§ 3. The legislature shall never grant any extra compensation to any pub¬ 
lic officer, employe, agent or contractor after the services shall have been ren¬ 
dered or the contract entered into, nor authorize the payment of any claims or 
part thereof created against the state, under any agreement or contract made 
without express authority of law, and all such unauthorized agreements or con¬ 
tracts shall be null and void; nor shall the compensation of any public officer 
be increased or diminished during his term of office; Provided, however, that! 
the legislature may make appropriations for expenditures incurreu in suppress¬ 
ing insurrection or repelling invasion. 

See Stanton v. State, Art 11, sec 9. 

EXAMINATION OF LEGISLATIVE JOURNAL—ASSISTANT SUPERIN¬ 
TENDENT OF INSTRUCTION—INCREASE OF OFFICIAL SALARY. 

1. Where two laws containing inconsistent provisions were approved 
by the governor upon the same day, and it becomes necessary to know 
which was the later expression of the legislative will, the court may, of its 





42 


Constitution of South Dakota 


own motion, examine the legislative journals, and take judicial notice of 
what they show. 

2. Section 6, c. 56. Sess. Laws 1891, empowers the superintendent of 

public instruction “to appoint an assistant or deputy, who * * * shall 

perform such duties pertaining to the office as tbe superintendent may di¬ 
rect.” A deputy or assistant so appointed has no fixed term of office, but 
holds at the pleasure of the appointing power. 

3. Section 3, Art. 12, of the Constitution does not apply to such deputy 
or asisstant so appointed. 

Somers v. State, 5 S. D., 321. 58 N. W. 804. 

COMPENSATION OF OFFICER—CHANGE DURING TERM. 

A deputy appointed by an officer, to hold during the pleasure of such 
principal, does not hold for a “term” within the meaning of section 3, Art. 
12 of the Constitution. 

Somers v. State. 5 S. D., 584. 59 N. W., 962. 

REDUCING COMPENSATION OF VETERINARY SURGEON—ORGANIZA¬ 
TION OF TERRITORY INTO STATE—EFFECT ON TERMS OF OF¬ 
FICE. 

The appointment and acceptance of the office of veterinary surgeon by 
the plaintiff, under the provisions of the territorial statute in force at the 
time and the continuance of the same under the provisions of the state Con¬ 
stitution, left his office without any fixed term; and a law reducing the sal¬ 
ary during the time he is performing the duties of it is not repugnant to 
Art. 12, Sec. 3. 

Collins v. State. 3 S. D., 18. 51 N. W. 776. 

OFFICERS—COMPENSATION—INCREASE. 

Const. Art. 12, § 3, is not violated by Laws 1903, p. 94, c. 86, creating 
a new state board of charities and corrections, to take the place of the old 
and, among other things, providing that the compensation of members shall 
be a salary of $1,500 per annum, instead of a per diem of $3, under the 
old law. 

Thomas et al v. State, 17 S. D., 579. 97 N. W. 1011. 

OFFICIALS—STATE—DEFINED. 

Construed by its context, the provision of Article 12, § 3, includes un¬ 
der the term “public officers” only state officers who draw their salary 
from the state treasury, and does not include the county judges. 

Hauser v. Seeley et al, 18 S. D. 308. 100 N. W. 437. 

§ 4. An itemized statement of all receipts and expenditures of the public 
moneys shall be published annually in such manner as the legislature shall 
provide, and such statements shall be submitted to the legislature at the be¬ 
ginning of each regular session by thj governor with his message. 

ARTICLE XIII. 

PUBLIC INDEBTEDNESS. 

§ 1. Neither the state nor any county, township or municipality shall loan 
or give its credit or make donations to or in aid of any individual association 
or corporation except for the necessary support of the poor, nor subscribe to 
or become the owner of the capital stock of any association or corporation, nor pay 
or become responsible for the debt or liability of any individual, association or 
corporation; Provided, that the state may assume or pay such debt or liability 
when incurred in time of war for the defense of the state. Nor shall the state 
engage in any work of internal improvement. 

TERRITORIAL STATUTES—RETROACTIVE LEGISLATION—COMPENSA¬ 
TION TO FIRE COMPANIES. 

1. Whether or not any particular territorial law, or any independent 
provision, survived the adoption of the state Constitution, and so continues 
in force as the law of the state, depends upon whether or not such law or 
such provision is obnoxious to any rule or provision of the Constitution. 

2. Since from the property of the state is largely derived the revenue 
of the State, it is within the legitimate powers of a state government to 
employ general means for the protection of the property, as well as the per¬ 
sons, of its citizens. 

3. To accomplish such protection, and as a means of securing greater 
efficiency in the fire departments and service of the state, the legislature 
may lawfully offer, by general law, a compensation or reward to such fire 
companies as will comply with conditions therein named, designed to pro¬ 
mote their usefulness and competency; and acceptance and compliance with 
such conditions constitute a sufficient consideration for an appropriation by 
the legislature to redeem such promise. 




Constitution of South Dakota 


43 


4. Such appropriation is not a “donation,” within the meaning of sec¬ 
tion 1, Art. 13, of the Constitution. 

Cutting, City Treasurer, v. Taylor, State Auditor. 3 S. D., 11. 51 N. W. 949. 

§ 2. For th3 purpose of defraying extraordinary expenses and making 
public improvements, or to meet casual deficits or failure in revenue, the state 
may contract debts never to exceed with previous debts in the aggregate $100,000, 
and no greater indebtedness shall be incurred except for the purpose or repelling 
invasion, suppressing insurrection, or defending the state or the United States 
in war and provision shall be made by law for the payment of the interest an¬ 
nually, and the principal when due, by tax levied for the purpose or from other 
sources of revenue; which law providing for the payment of such interest and 
principal by such tax or otherwise shall be irrepeaiable until such debt is paid; 
Provided , however, the State of South Dakota shall have the power to refund tne 
territorial debt assumed by tne State of South Dakota, by bonds of the State of 
South Dakota. 

STATES—INCURRING INDEBTEDNESS—WHAT CONSTITUTES—WAR¬ 

RANTS TO DEFRAY CURRENT EXPENSES. 

1. Appropriations from the assessed but uncollected revenues of the 
state, and the issuance of warrants in pursuance thereof to defray current 
expenses, is not the incurring of an indebtedness, within Const. Art. 13, § 2. 

2. Revenues of the state, assessed and in process of collection, are to 
be considered as constructively in the treasury, and may be appropriatd and 
treated as though actually there. 

3. That warrants issued in anticipation of such assessed revenues 
draw interest does not make the issuance of the warrants an incurring of 
an indebtedness to the extent of such interest, within Const. Art. 13, § 2, 
where such warrants, with respect to interest, are not different from other 
warrants which may properly be drawn and issued. 

In re State Warrants 6 S. D., 518. 62 N. W. 101. See also Art. 8, Sec. 2, 13. 

BONDS—SALE—LOSSES. 

1. Act March 12, 1895, directing the issue and sale of State bonds 
to make good losses to the permanent school fund and to the interest and 
income funds, caused by the defalcation of the late state treasurer, is not 
repugnant to Const. Art. 13, section 2, limiting the State’s power to “con¬ 
tract debt.” 

2. Const. Art. 8, sections 2, 13, provide that the state shall make 
good all losses to the perpetual school fund; and that losses caused by the 
defalcation or mismanagement of the officer controlling the fund shall be a 
permanent funded debt against the state, which shall not be counted as 
a part of the indebtedness to which the state is limited by Const. Art. 13, § 2. 

3. Article 8, Sec. 3, declares that no part of the fund “either principal 
or interest,” shall be diverted from its purpose. Held, that the state must 
make good all losses to the interest and income funds as well as to the per¬ 
manent fund, and for this purpose the legislature may authorize the issue 
of bonds. 

In re State Bonds. 7 S. D., 42. 63 N. W. 223. 

§ 3. That the indebtedness of the State of South Dakota limited by sec¬ 
tion two of this article shall be in addition to the debt of the territory of Da¬ 
kota assumed by and agreed to be paid by South Dakota. 

AGRICULTURAL COLLEGE—CONTRACTS OF DIRECTORS—RATIFICA¬ 
TION BY STATE—TERRITORIAL LIABILITIES—DIVISION BE¬ 
TWEEN STATES. 

Article 13 of the state Constitution, together with a corresponding ar- 
tice in the constitution of North Dakota, was designed to divide the terri¬ 
torial liabilities between the two states of North and South Dakota, and in¬ 
dicate what each state should assume and pay. 

A claim against the territory of Dakota, if valid, as belonging to the 
class which, by agreement, South Dakota was to pay, may be enforced against 
the state, although never specifically adjusted between the two states. 

Jewell Nursery Co. v. State. 4 S. D., 213. 56 N. W. 113. See art 5, Sec. 31. 

§ 4 The debt of any county, city, town, school district, civil township, or 
other subdivision, shall never exceed five (5) per centum upon the assessed 
value of the taxable property therein. In estimating the amount of indebted¬ 
ness which a municipality or subdivision may incur the amount of indebtedness 
contracted prior to the adoption of this constitution shall be included. 

Provided mat any county, municipal corporation, civil township, district or 
other subdivision, may incur an additional indebtedness not exceeding ten per 
centum upon the assessed value of the taxable property therein for the pur- 
Dose of providing water for irrigation and domestic uses. Provided, further , 

“In estimating the amount of the indebtedness which a municipality or 



44 


Constitution of South Dakota 


that no county, municipal corporation or civil township shall he Included 
within any such district or subdivision without a majority vote in favor thereof 
of the electors of the county, municipal corporation or civil township, as the 
case may be which is proposed to be included therein, and no such debt shall 
ever be incurred for any of the purposes in this section provided; unless au¬ 
thorized by a vote in favor thereof of a majority of the electors of such county, 
municipal corporation, civil township, district or subdivision incurring the same. 

Note— The foregoing section (4) was submitted by the legislature in 1895, as an 
amendment to Section 4 of Article 13, of the Constitution, and was adopted at the gen¬ 
eral election of 1896 by a vote of 28,490 for, and 14.789 against. 

That at the general election held on November 4, 1902, Section 4 of Article 
13 of the Constitution was amended by a popular vote of 32,810 for to 13,599 
against, so as to read as follows: 

“Section 4. The debt of any county, city, town, school district, civil town¬ 
ship or other sub-division, shall never exceed five (5) per centum upon the as¬ 
sessed valuation of the taxable property therein for the year preceding that in 
which said indebtedness is incurred. 

subdivision may incur, the amount of indebtedness contracted prior to the adop¬ 
tion of the constitution shall be included; 

“ Provided, That any county, municipal corporation, civil township, district 
or other subdivision may incur an additional indebtedness not exceeding ten per 
centum upon the assessed valuation of the taxable property therein for the year 
preceding that in which said indebtedness is incurred, for the purpose of provid¬ 
ing water and sewerage for irrigation, domestic uses, sewerage and other pur¬ 
poses; and 

“ Provided, further, That in a city where the population is 8,000 or more, such 
city may incur an indebtedness not exceeding eight per centum upon the assessed 
valuation of the taxable property therein for the year next preceding that in 
which said indebtedness is incurred for the purpose of constructing street rail¬ 
ways, electric lights or other lighting plants. 

“Provided, further, That no county, municipal corporation, civil township, 
district or subdivision shall be included within such district or sub-division with¬ 
out a majority vote in favor thereof of the electors of the county, municipal cor¬ 
poration, civil township, district or other sub-division as the case may be, which 
is proposed to be included therein, and no such debt shall ever be incurred for any 
of the purposes in this section provided, unless authorized by a vote In favor 
thereof by a majority of the electors of such county, municipal corporation, civil 
township, district or sub-division incurring the same.” 

BONDS—WARRANTS—COUNTY. 

The issuance of 4 per cent bonds by a county to refund 7 per cent war¬ 
rants, as allowed by Laws 1901, c. 9 4, was not unlawful, though it had 
already exceeded the limit of 5 per cent, indebtedness allowed by Const. Art. 
13, § 4, since by the exchange of the bonds for the warrants the indebtedness 
would be diminished, rather than increased. 

Walling v. Lumis, 16 S. D., 350; 92 N. W. 1063. 

CITIES—INDEBTEDNESS—INCREASE OF—WATER. 

1. Const. Art. 13, § 4, as amended in 1896, permitted cities, in addi¬ 
tion to the 5 per cent indebtedness originally allowed, to incur an addi¬ 
tional indebtedness, when authorized by a majority vote of the electors, not 
exceeding 10 per cent, of the assessed value of taxable property, for the 
purpose of providing water for irrigation and domestic uses. Held, that the 
power to incur a 10 per cent indebtedness for providing water was conferred 
regardless of existing indebtedness for other purposes. 

2. A proposition, favorably acted on by the voters of a city, authoriz¬ 
ing the issuance of bonds to the extent of $210,000 for a given purpose, con¬ 
ferred authority to issue such bonds in installments of less amounts as they 
became necessary. 

Wells v. City of Sioux Falls et al, 16 S. D., 547. 94 N. W. 425. 

MUNICIPAL CORPORATIONS—LIMIT OF INDEBTEDNESS—MONEY IN 

SINKING FUND—INCURRING DEBT—SUBMISSION TO VOTE—MA¬ 
JORITY. 

1. In determining whether a city’s limit of indebtedness, prescribed by 
Const. Art. 13, § 4, has been reached, money in the sinking fund and appli¬ 
cable, under the Constitution, only to payment of bonded indebtedness not 
yet matured, is to be deducted from its debt. 

2. The concurrence of less than a majority of all the electors of the 
city, though constituting a majority of those voting on the proposition, is 
insufficient. 

Williamson v. Aldrich et al. 21 S. D., 13; 108 N. W. 1063. 

§ 6. Any city, county, town, school district or any other subdivision In¬ 
curring indebtedness shall, at or before the time of so doing, provide for the 
collection of an annual tax sufficient to pay the interest and also the principal 



Constitution of South Dakota 


45 


thereof when due, and all laws or ordinances providing for the payment of the 
interest or principal of any debt shall be irrepealable until such debt be paid. 

BONDS—EDUCATIONAL—PAYMENT. 

1. A board of education authorized to issue bonds cannot allege, as a 
defense thereto against a bona fide purchaser, that it failed to comply with 
Const. Art. 13, § 5, where the bonds contained a recital “that all conditions 
and things required to be done, precedent to and in the issue of said bonds, 
have duly happened and been performed as required. 

2. The failure of a board of education to comply with section 5 does 
not relieve it from the obligation to thereafter provide for the payment of 
bonds issued in violation thereof. 

Wilson v. Board of Education, 12 S. D., 536. 81 N. W., 952. 

CITIES—APPLICATION OF TERM “ANY.” 

That the provision of the Constitution apply to all cities does not 
admit of doubt. Giving to the term “any” this construction, it would apply 
to all of the cities of the state, whether organized under special charers 
or under the general laws of the state. 

Heyler v. City of Watertown, 16 S. D., 27. 91 N. W. 334. 

TAX LEVY—LIMIT. 

The provision of the laws of 1899 p. 44, c. 41, that the total county 
tax rate shall not exceed 8 mills on the dollar for all purposes, violates Art. 
13, Sec. 5. 

Fremont, E. and M. V. R. Co. v. Pennington Co. et al 20 S. D. 270. 116 N. W. 

75. 

8 6. In order that the payment of the debts and liabilities contracted or 
incurred by and in behalf of the Territory of Dakota may be justly and equita¬ 
bly provided for and made, and in pursuance of the requirements of an act of 
congress approved February 22, 1889, entitled “An Act to Provide for the Di¬ 
vision of Dakota into two States and to Enable the People of North Dakota, 
South Dakota, Montana and Washington to form Constitutions and State Gov¬ 
ernments and to be Admitted into the Union on an Equal Footing with the Orig¬ 
inal States, and to Make Donations of Public Lands to such States” the States 
of North Dakota and South Dakota, by proceedings of a Joint Commission, 
duly appointed under said act, the sessions whereof were held in Bismarck in 
said State of North Dakota, from July 16, 1889, to July 31, 1889 inclusive, have 
agreed to the following adjustment of the amounts of the debts and liabilities 
of the Territory of Dakota which shall be assumed and paid by each of the 
States of North Dakota and South Dakota, respectively, to-wit: 

1. This agreement shall take effect and be in force from and after the ad¬ 
mission into the Union, as one of the United States of America, of either the 
State of North Dakota or the State of South Dakota. 

2. The words “State of North Dakota” wherever used in this agreement, 
shall be taken to mean the Territory of North Dakota, in case the State of South 
Dakota shall be admitted into the Union prior to the admission into the Union 
of the State of North Dakota; and the words “State of South Dakota,” wherever 
used in this agreement, shall be taken to mean the Territory of South Dakota 
in case the State of North Dakota shall be admitted into the Union prior to 
the admission into the Union of the State of South Dakota. 

3. The said State of North Dakota shall assume and pay all bonds issued 
by the Territory of Dakota to provide funds for the purchase, construction, re¬ 
pairs or maintenance of such public institutions, grounds or buildings as are 
located within the boundaries of North Dakota, and shall pay all warrants is¬ 
sued under and by virtue of that certain act of the Legislative assembly of 
the Territory of Dakota, approved March 3, 1889, entitled An Act to provide 
for the refunding of outstanding warrants drawn on the capitol building fund. 

4. The said State of South Dakota shall assume and pay all bonds issued 
by the Territory of Dakota to provide funds for the purchase, construction, re¬ 
pairs or maintenance of such public institutions, grounds or buildings as are 
located within the boundaries of South Dakota. 

6. That is to say: The State of North Dakota shall assume and pay the 
following bonds and indebtedness, to-wit: Bonds issued on account of the 
hospital for insane at Jamestown, North Dakota, the face aggregate of which 
is two hundred and sixty-six thousand dollars; also, bonds issued on account 
of the North Dakota University at Grand Forks, North Dakota, the face aggre¬ 
gate of which is ninety-six thousand seven hundred dollars; also, bonds issued 
on account of the penitentiary at Bismarck, North Dakota, the face aggregate 
of which is ninety-three thousand six hundred dollars; also refunding capitol 
building warrants dated April 1, 1889, eighty-three thousand five hundred and 
seven dollars and forty-six cents. 

And the State of South Dakota shall assume and pay the following bonds 
and indebtedness, to-wit: Bonds issued on account of the Hospital for the In¬ 
sane at Yankton, South Dakota, the face aggregate of which is two hundred 






46 


Constitution op South Dakota 


and ten thousand dollars; also, bonds issued on account of the school for deaf 
mutes, at Sioux Falls, South Dakota, the face aggregate of which is fifty-one 
thousand dollars; also, bonds issued on account of the University at Vermil¬ 
lion, South Dakota, the face aggregate of which is seventy-five thousand dollars; 
also, bonds issued on account of the penitentiary at Sioux Falls, South Dakota, 
the face aggregate of which is ninety-four thousand three hundred dol¬ 
lars; also, bonds issued on account of agricultural college, at Brookings South 
Dakota, the face aggregate of which is ninety-seven thousand five hundred 
dollars; also bonds issued on account of the normal school at Madison, South 
Dakota, the face aggregate of which is forty-nine thousand four hundred dol¬ 
lars; also, bonds issued on account of school of mines at Rapid City, South 
Dakota, the face aggregate of which is thirty-three thousand dollars; also, 
bonds issued on account of the reform school at Plankinton, South Dakota, the 
face aggregate of which is thirty thousand dollars; also bonds issued on account 
of the normal school at Spearfish, South Dakota, the face aggregate of which 
is twenty-five thousand dollars; also, bonds issued on account of the soldiers’ 
home at Hot Springs, South Dakota, the face aggregate of which is forty-five 
thousand dollars. 

6. The States of North Dakota and South Dakota shall pay one-half each 
of all liabilities now existing or hereafter and prior to the taking effect of this 
agreement incurred, except those heretofore and hereafter incurred on account 
of public institutions, grounds or buildings, except as otherwise herein specific¬ 
ally provided. 

7. The State of South Dakota shall pay to the State of North Dakota forty- 
six thousand five hundred dollars on account of the excess of territorial ap¬ 
propriations for the permanent improvement of territorial institutions which 
under this agreement will go to South Dakota, and in full of the undivided 
one-half interest of North Dakota in the territorial library, and in full settle¬ 
ment of unbalanced accounts, and of all claims against the Territory, of whatever 
nature, legal or equitable, arising out of the alleged erroneous or unlawful taxa¬ 
tion of the Northern Pacific Railroad lands, and the payment of said amount 
shall discharge and exempt the State of South Dakota from all liability for or 
on account of the several matters hereinbefore referred to; nor shall either 
state be called upon to pay or answer to any portion of liability hereafter aris¬ 
ing or accruing on account of transactions heretofore had, which liability 
would be a liability < i the Territory of Dakota had such territory remained 
in existence, and which liability shall grow out of matters connected with any 
public institution; grounds or buildings of the territory situated or located 
within the boundaries of the other state. 

8. A final adjustment of accounts shall be made upon the following basis. 
North Dakota shall be charged with all sums paid on account of the public 
institutions, grounds or buildings located within its boundaries on account of 
the current appropriations since March 8th, 1889; and South Dakota shall be 
charged with all sums paid on account of public institutions, grounds or 
buildings located within its boundaries on the same account and during the 
same time. Each state shall be charged with one-half of all other expenses of 
the territorial government during the same time. All moneys paid into the 
treasury during the period from March 8th, 1889, to the time of taking effect 
of this Agreement by any county, municipality or person within the limits of 
the proposed State of North Dakota, shall be credited to the State of North 
Dakota; and all sums paid into said treasury within the same time by any 
county, municipality or person within the limits of the proposed State of South 
Dakota shall be credited to the State of South Dakota; except that any and 
all taxes on gross earnings paid into said treasury by railroad corporations 
since the 8th day of March 1889, based upon earnings of years prior to 1888, 
under and by virtue of the Act of the Legislative Assembly of the Territory of 
Dakota, approved March 7th, 1889, and entitled “An Act providing for the levy 
and collection of taxes upon property of railroad companies in this territory,” 
being Chapter 107 of the Session Laws of 1889 (that is, the part of such sum 
going to the territory) shall be equally divided between the States of North 
Dakota and South Dakota; and all taxes heretofore or hereafter paid into the 
said treasury under and by virtue of the Act last mentioned, based on the 
gross earnings of the year 1888, shall be distributed as already provided by 
law, except that so much thereof as goes to the Territorial Treasury shall be 
divided as follows: North Dakota shall have so much thereof as shall be 
or has been paid by railroads within the limits of the proposed 
State of North Dakota and South Dakota so much thereof as 
shall be or has been paid by railroads within the limits of the 
proposed State of South Dakota; Each state shall be credited 
also with all balances of appropriations made by the Seventeenth Legislative 
Assembly of the Territory of Dakota for the account of public institutions, 
grounds or buildings situated within its limits, remaining unexpended on 
March 8th, 1889. If there be any indebtedness except the indebtedness repre¬ 
sented by the bonds and refunding warrants hereinbefore mentioned, each state 




Constitution of South Dakota 


47 


shall at the time of such final adjustment of accounts, assume its share of said 
indebtedness as determined by the amount paid on account of the public 
institutions, grounds or buildings of such state in excess of the receipts from 
counties, municipalities, railroad corporations or persons within the limits of 
said state as provided in this Article; and if there should be a surplus at the 
time of such final adjustment, each State shall be entitled to the amounts re¬ 
ceived from counties, municipalities, railroad corporations or persons within 
its limits over and above the amount charged to it. 

§ 7. And the State of South Dakota hereby obligates itself to pay such 
part of the debts and liabilities of the Territory of Dakota as is declared by the 
foregoing Agreement to be its proportion thereof, the same as if such proportion 
had been originally created by said State of South Dakota as its own debt or 
liability. 

§ 8. The Territorial Treasurer is hereby authorized and empowered to 
issue refunding bonds to the amount of $107,500.00, bearing interest not to ex¬ 
ceed the rate of four per cent, per annum, for the purpose of refunding the fol¬ 
lowing described indebtedness of the Territory of Dakota, to-wit: 

$77,500.00 5 per cent bonds, date May 1st, 1883, issued for the construction 
of the West Wing of the Insane Hospital at Yankton and $30,000.00, 6 per cent, 
bonds dated May 1st, 1883, issued for permanent improvements Dakota Peni¬ 
tentiary, at Sioux Falls, such refunding bonds, if issued, to run for not more 
than twenty years, and shall be executed by the governor and treasurer of the 
Territory, and shall be attested by the Secretary under the great seal of the 
Territory. 

In case such bonds are issued by the Territorial Treasurer as hereinbe¬ 
fore set forth, before the first day of October, 1889, then upon the admission of 
South Dakota as a state it shall assume and pay said bonds in lieu of the afore¬ 
said Territorial indebtedness. 

ARTICLE XIV. 


STATE INSTITUTIONS. 


§ 1. The charitable and penal institutions of the State of South Dakota 
shall consist of a penitentiary, insane hospital, a school for the deaf and dumb, 
a school for the blind and a reform school. 

§ 2. The state institutions provided for in the preceding section shall be 
under the control of the State Board of Charities and Corrections, under such 
rules and restrictions as the legislature shall provide; such board to consist 
of not to exceed five members, to be appointed by the governor and confirmed by 
the senate, and whose compensation shall be fixed by law. 

MEMBERS—TERMS OF OFFICE—APPOINTMENT—VACANCY. 

1. Since Const. Art. 14, § 2, creating the board of charities and cor¬ 
rections, to be appointed by the governor, the Laws 1890, Chap. 5, § § 1, 3, 
prescribing the number and qualifications of the members of the board,, and 
fixing their term of office, contain no authority for holding over, the office of 
each member becomes vacant at the expiration of his term unless his suc¬ 
cessor has been appointed. 

2. Since Const. Art. 14, § 2, creating the board of charities and cor¬ 
rections, to be appointed by the governor, and Laws 1890, Chap. 5, § § 1, 3, 
prescribing the number and qualifications of members of the board, and fix¬ 
ing their term of office, contain on provision for filling vacancies the govern¬ 
or has power to fill vacancies by appointment for the full unexpired term, un¬ 
der the authority conferred on him by Const. Art. 4, § 8 

State ex rel. Lavin et al, v. Bacon et al, 14 S. D. 284. 85 N. W. 225. See also 

85 N. W. 605 same title. 

STATUTORY PROVISIONS. 

Const. Art. 14, § 2, is not violated by Laws 1903, p. 94, c. 86, creating 
a new board, of three members, to take the place of the old board, of five, 
with a proviso that nothing in the act shall operate to legislate out of office 
any member of the old board. 

Thomas et al, v. State, 17, S. D., 579. 97 N. W. 1011. 


§ 3 The State University, the agricultural college, the normal schools 
and all other educational institutions that may be sustained either wholly 
cr in part by the State shall be under the control of a board of five members 
appointed by the Governor and confirmed by the Senate under such rules and 
restrictions as the legislature shall provide. The Legislature may increase 


the number of members to nine. 

NnTF _This section (3) was submitted as an amendment to Constitution, Article 

14 U by the legislature in 1895. and at the general election in 1896, was adopted by 
the following vote; 31,061 for, and 11,690 against. 


REGENTS_TENURE OF OFFICE—VACANCY—APPOINTMENT. 

1. There being no provision for their holding over, the term of re- 




48 


Constitution op South Dakota 


gents is absolutely fixed at six years, and at its expiration, unless a succes¬ 
sor has been appointed, the office becomes vacant. 

2. Laws 1890, Chap. 6, Sec. 1, enacted to carry into effect the pro¬ 
vision of the Constitution respecting regents of education, having failed to 
provide for the future appointment of regents, or for the filling of vacancies 
in the board, and having so fixed the terms of its members that they expire 
in even numbered years, when the senate is not in session, vacancies caused 
by the expirations of such terms are to be filled by the governor, under the 
general provisions of Const. Art. 4, Sec. 8. 

State ex rel. Wood v. Sheldon. 8 S. D., 525. 67 N. W. 613. 

§ 4. The regents shall appoint a board of five members for each institu¬ 
tion under their control, to be designated the board of trustees. They shall 
hold office for five years, one member retiring annually. The trustees of each 
institution shall appoint the faculty of the same, and shall provide for the 
current management of the institution, but all appointments and removals 
must have the approval of the regents to be valid. The trustees of the several 
institutions shall receive no compensation for their services, but they shall 
be reimbursed for all expenses incurred in the discharge of their duties, upon 
presenting an itemized account of the same to the proper officer. Each board 
of trustees at its first meeting shall decide by lot the order in which its members 
shall retire from office. 

Note —Constitution Article 14, § 4, was stricken from the Constitution, by an amend¬ 
ment submitted by the legislature In 1895, and was adopted by the popular vote at the 
general election in 1896: 31.061 for. and 11.690 against. 

OFFICE AND OFFICER—TRUSTEE OF STATE AGRICULTURAL COL¬ 
LEGE—REMOVAL—STATE OFFICER DEFINED. 

1. Where an officer is appointed for a definite term, subject to re¬ 
moval for specified causes, he can be so removed only after notice to him of 
the cause assigned, and an opportunity given him to defend. 

2. A trustee of the state agricultural college appointed by the board of 
regents of education, as provided by section 4, Art. 14, of the Constitution, is 
not a “state officer,” within the meaning of section 3, Art. 16. 

State ex rel. Hitchcock v. Hewitt et al., Board of Regents of Education. 3 S. 
D., 187. 52 N. W. 875. 

§ 5. The legislature shall provide that the science of mining and metal¬ 
lurgy be taught in at least one institution of learning under the patronage of 
the state. 

ARTICLE XV. 

MILITIA. 

§ 1. The militia of the State of South Dakota shall consist of all able 
bodied male persons residing in the state, between the ages of eighteen and 
forty-five years, except such persons as now are, or hereafter may be, exempted 
by the laws of the United States or of this state. 

§ 2. The Legislature shall provide by law for the enrollment, uniforming, 
equipment and discipline of the militia and the establishment of volunteer and 
such other organizations or both, as may be deemed necessary for the protection 
of the state, the preservation of order and the efficiency and good of the ser¬ 
vice. 

§ 3. The legislature in providing for the organization of the militia shall 
conform, as nearly as practicable, to the regulations for the government of the 
armies of the United States. 

§ 4. All militia officers shall be commissioned by the governor, and may 
hold their commissions for such period of time as the legislature may provide, 
subject to removal by the governor for cause, to be first ascertained by a court- 
martial pursuant to law. 

§ 5. The militia shall in cases except treason, felony or breach of the 
peace, be privileged from arrest during their attendance at muster and elec¬ 
tions, and in going to and returning from the same. 

§ 6. All military records, banners and relics of the state, except when in 
lawful use, shall be preserved in the office of the adjutant general as an en¬ 
during memorial of the patriotism and valor of South Dakota; and it shall be 
the duty of the Legislature to provide by law for the safe keeping of the same. 

§ 7. No person having conscientious scruples against bearing arms shall 
be compelled to do military duty in time of peace. 

ARTICLE XVI. 

IMPEACHMENT AND REMOVAL FROM OFFICE. 

§ 1. The House of Representatives shall have the sole power of impeach¬ 
ment. 

The concurrence of a majority of all members elected shall be necessary 
to an impeachment. 

§ 2. All impeachments shall be tried by the senate. When sitting for that 
purpose the Senators shall be upon oath or affirmation to do justice according 



Constitution of South Dakota 


49 


If evi - de ^ ce - No Person shall be convicted without the concurrence 

o-thirds of the members elected. When the governor or lieutenant gov¬ 
ernor is on trial the presiding judge of the supreme court shall preside. 
t j 8 , ine governor and other state and judicial officers excent Conn tv 

menWor^n^nVft? ^ &nd Police Ma S istr ates shall be liable to impeach 

drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor 
in office, but judgment in such cases shall not extend further than to removal 
Itnf 1 0f SS? and ^ ua lifi ca tion to hold any office of trust or profit under the 
? if’wi 7 e . pe /. son accused whether convicted or acquitted shall nevertheless 
be liable to indictment, trial, judgment and punishment according to law. 

INSURANCE COMMISSIONER—REMOVAL. 

rpmnvoTf* 1 ? 97 ’ Chap - 69 ’ ? 5, authorizing the governor at his pleasure to 
remove the insurance commissioner from his office created by said chaDter 
is not repugnant to Const. Art. 16, §§ 3, 4, since these sections apply only 
to the officers named in the Constitution. y 

State ex rel. Ayres v. Kipp, 10 S. D., 495. 74 N. W. 440. 

§ 4. All officers not liable to impeachment shall be subject to removal for 

misconduct or malfeasance or crime or misdemeanor in office, or for drunken¬ 
ness or gross incompetency, in such manner as may be provided by law. 


POWER OF GOVERNOR TO REMOVE REGENT OF EDUCATION. 

1. Chapter 124, Laws 1887, being section 117 et seq., Comp. Laws, and 
known as the “Public Examiners’ Act,” providing that upon the filing of a 
report of his examination, as required by said law, with the governor, he, the 
governor, “may cause the results of such examination to be published or at 
his discretion, to take such action for the public security as the exigency 
may demand; and if he should deem the public interests to require, he may 
suspend any such officer from further performance of duty until an examina¬ 
tion be had, or such security obtained as may be demanded for the prompt 
protection of the public funds,”—was not intended to, and does not, author¬ 
ize the governor to remove from office any officer so made the subject of the 
examiner’s report. 

2. Even if such law were originally intended to authorize the gover¬ 
nor to so remove from office at his discretion, the law in that respect and 
to that extent is inconsistent with, and therefore abrogated by, section 4, Art. 
16, of the state Consitution. Fuller, J., dissenting. 

State ex rel. Holmes, State’s Atty., v. Shannon. 7 S. D., 319. 64 N. W. 175. 

SAME. 

The Constitution, section 4, art. 16, having specified the causes for which 
such trustee may be removed, section 5, c. 6, Laws 1890, authorizing the 
board of regents to remove trustees for “sufficient cause,” must be under¬ 
stood to mean by “sufficient cause” one or more of the causes so enumerated 
in the constitutional provision referred to. 

State ex rel. Hitchcock v. Hewitt et al, 3 S. D., 187. 52 N. W. 875. 

§ 5. No officer shall exercise the duties of his office after he shall have 
been impeached and before his acquittal. 

§ 6. On trial of an impeachment against the governor the lieutenant 
governor shall not act as a member of the court. 

§ 7. No person shall be tried on impeachment before he shall have been 
served with a copy thereof at least twenty days previous to the day set for 
trial. 

§ 8. No person shall be liable to impeachment twice for the same offense. 

ARTICLE XVII 


CORPORATIONS. 

§ 1. No corporation shall be created or have its charter extended, changed 
or amended by special laws except those for charitable, educational, penal or 
reformatory purposes, which are to be and remain under the patronage and 
control of the state; but the legislature shall provide, by general laws for the 
organization of all corporations hereafter to be created. 

§ 2. All existing charters, or grants of special or exclusive privileges, 
under which a bona fide organization shall not have taken place and business 
been commenced in good faith at the time this constitution takes effect, shall 
thereafter have no validity. 

§ 3. The legislature shall not remit the forfeiture of the charter of any 
corporation now existing nor alter or amend the same nor pass any other gen¬ 
eral or special law for the benefit of such corporation, except upon the condi¬ 
tion that such corporation shall thereafter hold its charter subject to the pro¬ 
visions of this Constitution. 

§ 4. The exercise of the right of eminent domain shall never be abridged 
or so construed as to prevent the Legislature from taking the property and 
franchises of incorporated companies and subjecting them to public use, the 
OoELB^.—4 






50 


Constitution op South Dakota 


same as the property of individuals; and the exercise of the police power of 
the state shall never be abridged or so construed as to permit corporations to 
conduct their business in such manner as to infringe the equal rights of indi¬ 
viduals or the general well-being of the state. 

§ 6. In all elections for directors or managers of a corporation, each mem¬ 
ber or shareholder may cast the whole number of his votes for one candidate, 
or distribute them upon two or more candidates, as he may prefer. 

§ 6. No foreign corporation shall do any business in this state without 
having one or more known places of business and an authorized agent or 
agents in the same upon whom process may be served. 

CORPORATIONS—CONTRACTS—ACTIONS AGAINST. 

Article 17, § 6, of the Constitution, and sections 3190, 3192, Comp. Laws, 
were not designed or intended as a prohibition upon foreign corporations to 
make lawful contracts in this state to the extent to declare such contracts 
void, but were merely intended to furnish the means by which citizens could 
procure personal judgments against them, and bring them and their pro¬ 
perty within the reach of the process and jurisdiction of our courts; thus 
protecting them from fraud and imposition, and affording adequate and 
speedy relief against either. 

4 S. D., 237. N. W. 51-707. See also Wright v. Lee- 55 N. W. 931, (rehear¬ 
ing.) 

§ 7. No corporation shall engage in any business other than that ex¬ 
pressly authorized in its charter, nor shall it take or hold any real estate ex¬ 
cept such as may be necessary and proper for its legitimate business. 

CORPORATION—POWER TO TAX REAL ESTATE. 

A corporation organized for the purpose, among others stated, of buy¬ 
ing and selling personal property, is to that extent at least organized for a 
legal purpose, and may, under Section 7, Art, 17 of the Constitution, take 
and hold such real estate as may “be necessary and proper for its legitimate 
business;” and, under the rule first above announced, whether such corpora¬ 
tion has taken the title to lands described for a purpose other than that al¬ 
lowed by the Constitution is a matter between the government of the state 
and the corporation. 

Gilbert v. Hole. 2 S. D., 164. 49 N. W. 1. State ex rel, Gilbert v. Union In¬ 

vestment Co., et al. 7 S. D., 51 63 N. W. 232. Adams & Wesaker Co., v. Dey- 
ette et al. (See dissenting opinion.) 8 S. D., 132. 65 N. W. 471. 

§ 8. No corporation shall issue stocks or bonds except for money, labor 
done, or money or property actually received; and all fictitious increase of 
stock or indebtedness shall be void. The stock and indebtedness of corporations 
shall not be increased except in pursuance of general law, nor without the 
consent of the persons holding the larger amount in value of the stock first 
obtained, at a meeting to be held after sixty days’ notice given in pursuance of 
law. 

CORPORATIONS—ACTION AGAINST—PREJUDICED JUROR—VALID¬ 
ITY. 

1. Rev. Code. Civ. Pro. sec. 252, declares that interest on the part of 
a juror in the event of the action or in the main question involved, disquali¬ 
fies said juror. It is held that where plaintiff sued C. and certain corpora¬ 
tions for breach of a contract to deliver to plaintiff certain stock in the cor¬ 
porations for services rendered to C. and it did not appear at the time the 
jury was examined that the action involved any question relating to the un¬ 
lawful issue of stock, or that certain challenged jurors, who admitted they 
owned stock in mining companies which had been given them, were owners 
of any stock illegally issued, they were not disqualified by interest by such 
admission. 

2. A contract by certain mining corporations to issue to plaintiff cer¬ 
tain of their stock in payment for services rendered to C. individually, in 
aiding him to dispose of the stock of the corporations and in making assays, 
was illegal under Const, art. 17, § 8. 

Rogers v. Gladiator Gold Mine v. Mill Co., 21 S. D., 412. 115 N. W. 87. 

§ 9. The Legislature shall have the power to alter, revise or annul, any 
charter of any corporation now existing and revokable at the taking effect of 
this Constitution, or any that may be created, whenever in their opinion it 
may be injurious to the citizens of this state, in such a manner, however, that 
no injustice shall be done to the incorporators. No law hereafter enacted shall 
create, renew or extend the charter of more than one corporation. 

§ 10. No law shall be passed by the Legislature granting the right to 
construct and operate a street railroad within any city, town or incorporated 
village, without requiring the consent of the local authorities having the con¬ 
trol of the street or highway proposed to be occupied by such street railroad. 

§ 11. Any association or corporation organized for the purpose, or any 





Constitution of South Dakota 


51 


Individuel, shall have the right to construct and maintain lines of telegraph 
in this state and to connect the same with other lines; and the legislature shall 
by general law of uniform operation provide reasonable regulations to givei 
full effect to this section. No telegraph company shall consolidate with, or hold 
a controlling interest in the stock or bonds of any other telegraph company 
owning a competing line, or acquire by purchase or otherwise, any other com¬ 
peting line of telegraph. 

See Kirby v. Western Union Tel. Co., 55 N. W. 759. 

§ 12. Every railroad corporation organized or doing business In this 
state under the laws or authority thereof shall have and maintain a public 
office or place in this state for the transaction of its business, where transfers 
of its stock shall be made, and in which shall be kept for public inspection! 
books in which shall be recorded the amount of capital stock subscribed, and 
by whom; the names of the owners of its stock, and the amount owned by 
them respectively; the amount of stock paid in, and by whom; the transfers 
of said stock; the amount of its assets and liabilities; and the names and 
place of residence of its officers. The directors of every railroad corporation 
shall annually make a report, under oath, to the auditor of public accounts 
or some officer or officers to be designated by law, of all their acts and 
doings, which report shall include such matters relating to railroads as may be 
prescribed by law, and the Legislature shall pass laws enforcing by suitable 
penalties the provisions of this section. 

§ 13. The rolling stock, and all other movable property belonging to any 
railroad company or corporation in this tate shall be considered personal 
property, and shall be liable to execution and sale in the same manner as the 
personal property of individuals, and the legislature shall pass no laws exempt¬ 
ing such property from execution and sale. 

§ 14. No railroad corporation shall consolidate its stock, property or fran¬ 
chises with any other railroad corporation owning a parallel or competing line; 
and in no case shall any consolidation take place except upon public notice 
given out, at least sixty days to all stockholders, in such manner as may be 
provided by law. Any attempt to evade the provisions of this section, by any 
railroad corporation, by lease or otherwise, shall work a forfeiture of its char¬ 
ter. 

§ 15. Railways heretofore constructed or that may hereafter be con¬ 
structed, in this state are hereby declared public highways, and all railroad 
and transportation companies are declared to be common carriers and subject 
to Legislative control; and the Legislature shall have power to enact laws 
regulating and controlling the rates of charges for the transportation of passen¬ 
gers and freight as such common carriers from one point to another in this 
state. 

§ 16. Any association or corporation organized for the purpose shall have 
the right to construct and operate a railroad between any points within this 
state, and to connect at the state line with railroads of other states. Every 
railroad company shall have the right with its road to intersect, connect with, 
or cross any other railroad, and shall receive and transport each the other’s 
passengers, tonnage and cars, loaded or empty, without delay or discrimination. 

§ 17. The Legislature shall pass laws to correct abuses and prevent dis¬ 
crimination and extortion in the rates of freight and passenger tariffs on the 
different railroads in this state, and enforce such laws by adequate penalties, 
to the extent, if necessary for that purpose, of forfeiture of their property and 
franchises. 

§ 18. Municipal and other corporations and individuals invested with the 
privilege of taking private property for public use shall make just compensation 
for property taken, injured or destroyed, by the construction or enlargement 
of their works, highways or improvements, which compensation shall be paid 
or secured before such taking injury or destruction. The Legislature is hereby 
prohibited from depriving any person of an appeal from any preliminary as¬ 
sessment of damages against any such corporation or individuals made by 
viewers or otherwise; and the amount of such damages in all cases of appeal 
shall, on the demand of either party, be determined by a jury as in other* 
civil cases. 

HIGHWAYS—ASSESSMENT OF DAMAGES—JURY TRIAL 

1. The provisions of section 1302, Comp. Laws, imposing upon town¬ 
ship supervisors the duty of assessing the damages sustained by the owner 
of land by reason of the laying out, altering, or discontinuing any road,—the 
right to an appeal and a jury trial being given to the party who feels ag¬ 
grieved by any such determination or award of damages made by such super¬ 
visors (section 1324. Comp. Laws).—are not in conflict with the provisions 
of section 13, Art. 6, of the state Constitution. 

2. The purpose of the provisions of the Constitution evidently is to se¬ 
cure, to a party whose property is taken or damaged for public use, the right 




52 


Constitution of South Dakota 


to a jury trial upon the question of damages, and that right is secured by 
giving to the party whose land is so taken or damaged the right to an ap¬ 
peal to a court in which such a jury trial may be had.. 

3. The term “municipal corporation,” as used in chapter 94, Laws 
1891, does not include townships organized under the laws of this state. 

4. The term “other corporation” does not include townships organized 
under the laws of this state. 

5. Chapter 94, Laws 1891, was designed to affect “municipal” and 
“other corporations” referred to in section 18, Art. 17 of the Constitution only 
and has no application to quasi corporations organized under the laws of this 

state for political and governmental purposes. 

Town of Dell Rapids v. Irving. 7 S. D., 310. 64 N. W. 149. See art. 6, sec. 13. 

$ 19. The term “corporations” as used in this Article, shall be construed 
to include all joint stock companies or associations having any of the powers 
or privileges of corporations not possessed by individuals or partnerships. 

§ 20. Monopolies and trusts shall never be allowed in this State and no 
incorporated company, co-partnership or association of persons In this State 
shall directly or indirectly combine or make any contract with any incorporated 
company, foreign or domestic, through their stockholders or the trustees or 
assigns of such stockholders, or with any co-partnership or association of per¬ 
sons, or in any manner whatever to fix the prices, limit the production or regu¬ 
late the transportation of any product or commodity so as to prevent compe¬ 
tition in such prices, production or transportation or to establish excessive prices 
therefor. 

The Legislature shall pass laws for the enforcement of this section by ade¬ 
quate penalties and in the case of incorporated companies, if necessary for that 
purpose may, as a penalty, declare a forfeiture of their franchises. 

Note —This section (20) was submitted as an amendment to the Constitution, by 
the legislature In 1895, and was adopted by a popular rote of the electors of the state 
at the general election In 1896, by the following vote, for 36,763, against 9.136. 

ARTICLE XVIII. 

BANKING AND CURRENCY. 

§ 1. If a general banking law shall be enacted it shall provide for the reg¬ 
istry and countersigning by an officer of this state of all bills or paper credit 
designed to circulate as money, and require security to the full amount thereof, 
to be deposited with the State Treasurer, in the approved securities of the State 
or of the United States, to be rated at ten per centum below their par value, 
and in case of their depreciation the deficiency shall be made good by deposit¬ 
ing additional securities. 

§ 2. Every bank, banking company or corporation shall be required to 
cease all banking operations within twenty years from the time of its organiz¬ 
ation, and promptly thereafter close its business, but shall have corporate ca¬ 
pacity to sue or be sued until its business is fully closed, but the Legislature 
may provide by general law for the reorganization of such banks. 

§ 3. The shareholders or stockholders of any banking corporation shall 
be held individually responsible and liable for all contracts, debts and engage¬ 
ments of such corporation to the extent of the amount of their stock therein, 
at the par value thereof, in addition to the amount invested in such shares 
or stock; and such individual liabilities shall continue for one year after any 
transfer or sale of stock by any stockholder or stockholders. 

BANKING—STOCKHOLDER—LIABILITY—SUIT BY CREDITOR. 

A stockholder of an insolvent South Dakota bank is individually liable 
to a creditor of the bank up to the par value of his shares, notwithstanding 
Civ. Code sec. 864, providing that the shareholders of every banking asso¬ 
ciation organized under the laws of South Dakota shall be individually res¬ 
ponsible equally and ratably, and not one for the other for all contracts, 
debts and engagements of the association; since the constitutional provis¬ 
ion is self-executing, the statute must be construed in accordance there¬ 
with. 

A creditor may sue a stockholder on a judgment recovered against an 
insolvent banking association. 

Union Nat. Bank of Omaha v. Halles’- et al. 19 S. D. 474. 104 N. W. 213. 

ARTICLE XIX. 

CONGRESSIONAL AND LEGISLATIVE APPORTIONMENT. 

§ 1. Until otherwise provided by law, the members of the House of Rep¬ 
resentatives of the Uuited States, apportioned to this state, shall be elected by 
the state at large. 

§ 2. Until otherwise provided by law, the senatorial and Representative 
districts shall be formed, and the Senators and Representatives shall be appor¬ 
tioned as follows: 





Constitution of South Dakota 


53 


DISTRICTS. 

Note— The present apportionment as fixed by Chapter 13, Laws of 1907, has 
been omitted from this Constitution. 

ARTICLE XX. 

SEAT OF GOVERNMENT. 

§ 1. The question of the location of the temporary seat of government 
shall be submitted to a vote of the electors of the proposed State of South Dakota 
in the same manner and at the same election at which this Constitution shall 
be submitted, and the place receiving the highest number of votes shall be the 
temporary seat of government until a permanent seat of government shall be 
established as hereinafter provided. 

§ 2. The legislature at its first session after the admission of this state, 
shall provide for the submission of the question of a place for a permanent 
seat of government to the qualified voters of the state at the next general elec¬ 
tion thereafter, and that place which receives a majority of all the votes cast 
upon that question shall be the permanent seat of government. 

§ 3. Should no place voted for at said election have a majority of all votes 
cast upon this question, the governor shall issue his proclamation for an elec¬ 
tion to be held in the same manner at the next general election to choose between 
the two places having received the highest number of votes cast at the first 
election on this question. This election shall be conducted in the same manner 
as the first election for the permanent seat of government, and the place re¬ 
ceiving the majority of all votes cast upon this question shall be the permanent 
seat of government. 

EVIDENCE—JUDICIAL NOTICE—INDIAN RESERVATIONS — TITLE — 

JURISDICTION STATE COURTS. 

The Supreme Court will take judicial notice that by treaty stipulations 
certain territory within the state has been set apart as a reservation for In¬ 
dians, and that the reservation has not been subdivided or allotted to the 
Indians in severalty, but that it belongs to them as a tribe. 

2. Under the provisions of the act admitting the state into the Union 
that the state should disclaim the right and title to lands within the state 
held by any Indian tribes, and that until the title shall have been extingu¬ 
ished by the United States the same shall remain subject to the jurisdiction 
and control of congress, and Const, art. 2 2, by which the state on its part 
entered into the required compact with the United States, the state courts 
are precluded from exercising jurisdiction in actions involving the posses¬ 
sion or right to possession of Indian reservation lands, such as an action of 
trespass brought by a tribal Indian against an Indian agent to recover dam¬ 
ages for the latter’s act in destroying fences erected by the former on land 
within the reservation. 

Peano v. Brennan. 20 S. D., 342. 106 N. W. 409. 

ARTICLE XXI. 

MISCELLANEOUS. 

§ 1. Seal and coat of arms.] The design of the great seal of South Dako¬ 
ta shall be as follows: A circle within which shall appear in the left foreground 
a smelting furnace and other features of mining work. In the left background 
a range of hills. In the right foreground a farmer at his plow. In the right 
background a herd of cattle and a field of corn. Between the two parts thus 
described shall appear a river bearing a steamboat. Properly divided between 
the upper and lower edges of the circle shall appear the legend, “Under God 
the People Rule” which shall be the motto of the State of South Dakota. Ex¬ 
terior to this circle and within a circumscribed circle shall appear, in the upper 
part, the words, “State of South Dakota,” in the lower part the words, “Great 
Seal/’ and the date in Arabic numerals of the year in which the State shall be 
admitted to the Union. 

NOTE—For discription of State Flag see Laws 1909. Chap. 230. p. 361. 

Compensation of Public Officers. 

§ 2. The Governor shall receive an annual salary of two thousand five 
hundred dollars; the Judges of the Supreme Court shall each receive an annual 
salary of two thousand five hundred dollars; the Judges of the Circuit Court 
shall each receive an annual salary of two thousand dollars; Provided, that the 
Legislature may, after the year one thousand eight hundred and ninety, increase 
the annual salary of the Governor and each of the Judges of the Supreme Court 
to three thousand dollars, and the annual salary of each of the Circuit Court 
Judges to two thousand five hundred dollars. The Secretary of State, State 
Treasurer and State Auditor shall each receive an annual salary of one thous¬ 
and eight hundred dollars; the Commissioner of School and Public Lands 




54 


Constitution of South Dakota 


shall receive an annual salary of one thousand eight hundred dollars; the Su¬ 
perintendent of Public Instruction shall receive an annual salary of one thous¬ 
and eight hundred dollars; the Attorney General shall receive an annual sal¬ 
ary of one thousand dollars; the compensation of the Lieutenant Governor 
shall be double the compensation of the State Senator. They shall receive no 
fees or perquisites whatever for the performance of any duties connected with 
their offices. It shall not be competent for the legislature to increase the salaries 
of the officers named in this article except as herein provided. 

Note—By the provisions of Chap. 110, laws of 1901, approved Feb. 1, 1901, the 
salaries of the Governor and Judges of the Supreme and Circuit Courts were in¬ 
creased as contemplated by the above section. 

State vs. Roddle, 12 S. D., 433. See 81. N. W. 90 also art. 4 sec. 13. 

JUDGES—SALARIES. 

Laws, 1901, c. 110, provides that the governor and each judge of the 
supreme court shall receive an annual salary of $3,000, and the several cir¬ 
cuit judges an annual salary of $2,500;” provided, however, that in any cir¬ 
cuit containing less than five thousand square miles and a population of less 
than fifty four thousand the judge thereof shall receive an annual salary of 
two thousand dollars. Held, that the proviso to the act of 1901 was unau¬ 
thorized. ; < 

2. The invalidity of the proviso did not impair the balance of the act. 

Bennett v. State, 16 S. D., 417. 93 N. W., 643. 

§ 3. Oath of office.] Every person elected or appointed to any office in 
this state, except such inferior offices as may be by law exempted, shall before en¬ 
tering upon the duties thereof, take an oath or affirmation to support the Con¬ 
stitution of the United States and of this State, and faithfully to discharge the 
duties of his office. 

§ 4. Exemptions.] The right of the debtor to enjoy the comforts and 
necessaries of life shall be recognized by wholesome laws exempting from forced 
sale a homestead, the value of which shall be limited and defined by law, to 
all heads of families, and a reasonable amount of personal property, the kind 
and value of which to be fixed by general laws. 

VACATING JUDGMENT — EXEMPTIONS — CONSTITUTIONAL LAW — 

DEBT INCURRED BY FRAUD. 

Section 4, Art. 21, did not repeal or supercede section 5139. Comp. Laws 
refusing the right to additional exemptions as against a debt incurred for 
property obtained under false pretenses, or {o contracts made prior to the 
adoption of the Constitution. 

Sundback v. Griffith. 8 S. D., 359. 63 N. W. 544. 

HOMESTEAD—MECHANICS’ LIENS. 

Comp. Laws, Secs. 5126, 5127, before the amendment of 1890, provided 
that there should be absolutely exempt from forced sale (7) “the homestead 
as created, defined and limited by law.” Sec. 2452 provided that the home¬ 
stead should be subject to mechanics’ liens. Laws 1890, Chap. 86, amend¬ 
ing Sec. 5127, substituted for subdivision 5 a statement of what should con¬ 
stitute a homestead, and made no exceptions to its exemption. Held, in view 
of the fact that in 1893 the legislature submitted to popular vote a proposi¬ 
tion to subject homesteads to mechanics’ liens, which was rejected, that the 
homestead defined by Laws 1890, Chap. 86, was not subject to such liens. 

Fallihee v. Wittmayer et al, 9 S. D., 479. 70 N. W. 642. 

HOMESTEAD—EXEMPTION. 

Chapter 86 of the Laws of 1890, by express terms absolutely exempts 
the homestead therein defined and limited from all process, levy, or sale. 
In Fallihee v. Whittmayer, 9 S. D., 479, 60 N. W. 642, it was decided that 
by this act mechanics and material men were deprived of the right to a lien 
against the homestead, and in the performance of the duty enjoined by 
Section 4 of Article 21 of the Constitution, requiring the enactment ot 
a wholesome law defining, limiting, and exempting the homestead from 
forced sale, it seems very clear from the language employed that the legis¬ 
lature of 1890 intended to bestow upon every owner of a homestead absolute 
immunity from a sale thereof in satisfaction of debts, even though con¬ 
tracted for the purchase price. The mortgagor being the fee-simple owner of 
the premises impressed with the character of a homestead, and the mort¬ 
gagee’s interest no more than a lien in the nature of a chattel, there can be 
no hypothecation unless the purported mortgage was concurred in and 
signed by both the husband and wife. Comp. Laws, § 2451, as amended by 
Chapters 76, 77, Laws 1891. 

Northwestern Loan & Banking Co. v. Jonasen et al. 11 S. D., 566. 79 N. W. 

840. 

HOMESTEAD—SALE—FORCED SALE. 

1. The sale of a homestead under a power of sale contained in a 





Constitution of South Dakota 


55 


mortgage is not a forced sale, within the meaning of Const. Art. 21, § 4 ex¬ 
empting homesteads from forced sales. 

Karcher v. Gans, 13 S. D., 383. 83, N. W. 431. 

§ 5. Rights of married women] The real and personal property of any 
woman in this state, acquired before marriage, and all property to which she 
may after marriage become in any manner rightfully entitled, shall be her 
separate property, and shall not be liable for the debts of her husband. 

§ 6. The drainage of agricultural lands is hereby declared to be a 
public purpose and the legislature may provide therefor, and may provide 
for the organization of drainage districts for the drainage of land for any 
public use, and may vest the corporate authorities thereof, and the corpor¬ 
ate authorities of counties, townships and municipalities, with the power to 
construct levees, drains and ditches, and to keep in repair all drains, ditches 
and levees heretofore constructed under the laws of this state, by special 
assessments upon the property benefited thereby, according to benefits re¬ 
ceived. 

This section (6) was submitted as an amendment to the constitution by the 
legislature of 1905, and was adopted by the popular vote of the electors at the 
general election of 906, by the following vote: For, 31,151; against, 18,799. 

ARTICLE XXII. 

COMPACT WITH THE UNITED STATES. 

The following article shall be irrevocable without the consent of the United 
States and the people of the State of South Dakota expressed by their Legislative 
Assembly: 

First, That perfect toleration of religious sentiment shall be secured, and 
that no inhabitant of this state shall ever be molested in person or property 
on account of his or her mode of religious worship. 

Second, That we, the people inhabiting the State of South Dakota, do agree 
and declare that we forever disclaim all right and title to the unappropriated 
public lands lying within the boundary of South Dakota, and to all lands lying 
within said limits owned or held by any Indian or Indian tribes; and that 
until the title thereto shall have been extinguished by the United States, the 
same shall be and remain subject to the disposition of the United States; and 
said Indian lands shall remain under the absolute jurisdiction and control of 
the Congress of the United States; that the lands belonging to citizens of the 
United States residing without the said State shall never be taxed at a higher 
rate than the lands belonging to residents of this State; that no taxes shall 
be imposed by the State of South Dakota on lands or property therein belong¬ 
ing to or which may hereafter be purchased by the United States, or reserved 
for its use. But nothing herein shall preclude the State of South Dakota from 
taxing as other lands are taxed any lands, owned or held by any Indian who 
has severed his tribal relation and has obtained from the United States, or from 
any person a title thereto by patent or other grant save and except such lands 
as have been or may be granted to any Indian or Indians under any act of Con¬ 
gress containing a provision exempting the lands thus granted from taxation. 
All such lands which may have been exempted by any grant or law of the 
United States shall remain exempt to the extent, and as prescribed by such act 
of Congress. 

Third, That the State of South Dakota shall assume and pay that portion 
of the debts and liabilities of the Territory of Dakota as provided in this Con¬ 
stitution. 

Fourth, That provision shall be made for the establishment and maintenance 
of systems of public schools, which shall be open to all the children of this 
State, and free from sectarian control. 

INDIAN RESERVATIONS. 

The Supreme Court will take judicial notice that by treaty stipulations 
certain territory within the state has been set apart as a reservation for 
Indians, and that the reservation has not been subdivided or allotted to the 
Indians’ in severalty, but that it belongs to them as a tribe. 

Under the provisions of tbe act admitting the state into the Union that 
the state should disclaim the right and title to lands within the state held 
by any Indian tribes, and that until the title shall have been extinguished 
by the United States, the same shall remain subject to he jurisdiction and 
control of congress, and Const., Art. 22, by which the state on its part entered 
into the required compact with the United States, the state courts are pre¬ 
cluded from exercising jurisdiction in actions involving the possession or 
right to possession of Indian reservation lands, such as an action of trespass 
brought by a tribal Indian against an agent to recover damages for the lat¬ 
ter’s act in destroying fences erected by the former on land within the res¬ 
ervation. 

Peano v. Brennan, 20 S. D. 342. 106 N. W. 409. 




56 


Constitution of South Dakota 


ARTICLE XXIII. 

AMENDMENTS AND REVISIONS OF THE CONSTITUTION. 

§ 1. Any amendment or amendments to this Constitution may be pro¬ 
posed in either House of the Legislature, and if the same shall be agreed to by 
a majority of the members elected to each of the two houses, such proposed 
amendment or amendments shall be entered on their journals, with the yeas 
and nays taken thereon, and it shall be the duty of the Legislature to submit 
such proposed amendment or amendments to the vote of the people at the next 
general election. And if the people shall approve and ratify such amendment 
or amendments by a majority of the electors voting thereon, such amendment or 
amendments shall become a part of this Constitution; Provided , that the 
amendment or amendments so proposed shall be published for a period of twelve 
weeks previous to the date of said election, in such manner as the Legislature 
may provide; and Provided , further , That if more than one amendment be sub¬ 
mitted they shall be submitted in such manner that the people may vote for or 
against such amendments separately. 

AMENDMENTS—SEPARATE SUBMISSION. 

The object of this original action is to ascertain whether certain per¬ 
sons joined with the state as plaintiffs, or the defendants, have authority 
to control the various educational institutions of this state. The authority 
of the former is derived from appointments under Chap. 6, Laws 1890; that 
of the latter, from appointments under an act of the legislature approved 
March 5, 1897. The final determination of the controversy will evidently in¬ 
volve the validity of proceedings taken to amend the Constitution. The ac¬ 
tion of the legislature is shown by a joint resolution published as Chap. 3 6, 
Laws 1895. Counsel for plaintiffs contend that the changes therein proposed 
have not become part of the Constitution, for the following reasons: (1) Such 
amendment was not entered upon the journal of the house of representa¬ 
tives; (2) it was not printed upon each ticket on the ballots cast at the 
next general election; (3) it was not submitted by the legislature to the vote 
of the people; (4) the title of the resolution does not truly express its sub¬ 
ject; and (5) the amendment was not published as required by law. A copy 
of the official ballot is attached to the complaint, from which it appears that 
the contemplated changes were submitted in such manner that the electors 
could not vote for or against each one separately. The Constitution provides 
that “if more than one amendment be submitted, they shall be submitted in 
such manner that the people may vote for or against such amendments sep¬ 
arately.” Const. Art. 23, Sec. 1. Although the apparent disregard of this 
meritorious and mandatory requirements is not specified in the complaint, it 
will be the duty of the court to consider it upon the final determination of 
this action. Then the question—of law—will be whether the alleged amend¬ 
ment or amendments constitutes a part of the Constitution. The answer to 
such question cannot be controlled alone by a consideraion of the objections 
specified in the complaint or mentioned in argument. The rule is element¬ 
ary that a party should not plead the law of the forum, and that the courts 
of any state must take judicial notice of the contents of its Constitution. 

State ex rel. Adams, State’s Atty. et al.v.Herreid et al. 71 N. W. 319. Ap¬ 
pealed 10 S. D. 120. 72 N. W. 93. 

1. A proposition for an amendment to the Constitution, entered in full 
upon the journal of the senate, and by title only upon the journal of the 
house is entered upon the journals of the two houses, within the meaning 
of Const. Art. 23, Sec. 1, providing that a “proposed amendment or amend¬ 
ments shall be entered on their journals.” 

2. A proposed constitutional amendment may become a law, though it 
is not printed upon each ticket upon the ballots voted in the general elec¬ 
tion. 

3. A proposed constitutional amendment may become a law though the 
legislature made no joint resolution formally declaring that it should be sub¬ 
mitted to the people. 

4. A proposed amendment to the Constitution, by one section changed 
the number of regents of the state educational instituions, and by two other 
sections, abolished the trusees of such insitutions. These sections were sub¬ 
mitted to the people in such a way that each elector was compelled to vote 
for or against all the proposed changes. Held, that this did not violate Const. 
Art. 23, Sec. 1, requiring the submission of more than one amendment in 
such a way that they may be voted on separately as the single object of the 
amendment was to place said institutions under the control of a single board; 
and provisions incidental thereto would not constitute additional amend¬ 
ments. 

5. The amendment of 1896 to Const. Art. 14, Secs. 3, 4, decreasing 
the number of a board of regents of education and increasing their powers, 



Constitution of South Dakota 


57 


is authority for the creation of a new board agreeably to the Constitution as 
amended, though the terms for which the members of the old board had 
been appointed had not expired 

State ex rel. Adams, State’s Atty. et al, v. Herried et al. 19 S. D., 109. 72 

N. W. 93. 

§ 2. Whenever two-thirds of the members elected to each branch of the 
Legislature shall think it necessary to call a convention to revise this Consti¬ 
tution they shall recommend to the electors to vote at the next election for mem¬ 
bers of the Legislature, for or against a convention; and if a majority of all 
the electors voting at said election shall have voted for a convention, the Legis¬ 
lature shall, at their next session, provide by law for calling the same. The 
convention shall consist of as many members as the House of Representatives 
of the Legislature, and shall be chosen in the same manner, and shall meet 
within three months after their election for the purpose aforesaid. 


ARTICLE XXIV. 

PROHIBITION. 

Note Article 24 of the Constitution was adopted at the time of the adoption 
of the Constitution, October 1, 1889, it being voted upon separately, byt the fol¬ 
lowing vote: For, 40,234; against, 34,510. The legislature in 1895 submitted an 
amendment for the repeal of this article (24), which was adopted by a popular 
vote of the electors at the general election in 1896, by a vote of 31,901 for, and 
24,910 against. , i 

ARTICLE XXV. 

Article 24 of the Constitution declares a policy single in its ultimate 
purpose, and object, but a law for its enforcement must necessarily, and 
therefore may legally, include the employment of many measures and the 
attainment of many ends, not as independently objects or subjects of legisla¬ 
tion, but as auxiliary to the final purpose sought. 

State v. Becker, 3 S. D., 29. 51 U. W. 1018. 

MINORITY REPRESENTATION. 

Note —Article 25 of the Constitution, was submitted to a separate vote, at the time 
of the adoption of the Constitution, October 1st, 1889, and was rejected by a vote of 24,161 


ARTICLE XXVI. 


SCHEDULE AND ORDINANCE. 


Noth—A s the provisions of this article (26), with the exception of Sections 17 and 18 
thereof, have become obsolete, or fully executed, they have been omitted from this compila¬ 
tion. 

COURT—ABOLITION BY ADOPTION OF CONSTITUTION—JURISDIC¬ 
TION OF NEW COURT. 

1. Where an equitable action was commenced in a territorial district 
court, and the evidence taken before such court, but before a decision was 
made the district court became extinct by reason of the admission of the 
State of South Dakota, it was not error for the judge of the circuit court 
which succeeded said district court, he having been the judge of such dis^ 
trict court at the time of its extinction, and the judge who partially tried the 
case, to decide the same upon the evidence taken before him as such dis¬ 
trict judge. 

2. In such case it was competent and proper for the circuit court, under 
Section 1, Art. 26, of the state Constitution, to take up the case at the point 
where the district court left it, and proceed to a final determination as nearly 
as possible “as if no change had taken place in this government. ” 

Smith v. Tosini et ux., 1 S. D., 632. 48. N. W. 299. 


CLERK OF CIRCUIT COURT—APPOINTMENT—MANDAMUS. 

1. The office of clerk of the district court was abolished by the Consti¬ 
tution, upon the admission of South Dakota as a state. 

2. The office of clerk of the circuit court is a new office, created by the 


Constitution. 

3. The incumbent of the old office of clerk of the district court, at the 
time of the admission of the state, did not become the clerk of the circuit 
court, by virtue of section 4, Art. 26, of the Constitution, for that section only 
provided that certain officers should continue to hold and exercise their res¬ 
pective offices until superseded under the Constitution; and, the office of clerk 
of the district court being abolished, its former incumbent could not con¬ 


tinue to hold and exercise it. 

Driscoll v. Jones. 1 S. D., 8. 44 N. W. 726. 

§ 17. The Ordinances and Schedule enacted by this Convention shall be 

held to be valid for all the purposes thereof. 

§ 18 That we, the people of the State of South Dakota, do ordain: 

First: That perfect toleration of religious sentiment shall be secured, and 



58 


Constitution of South Dakota 


that no inhabitant of this State shall ever be molested in person or property 
on account of his or her mode of religious worship. 

Second: That we, the people inhabiting the State of South Dakota, do agree 
and declare, that we forever disclaim all right and title to the unappropriated 
public lands lying within the boundaries of South Dakota; and to all lands 
lying within said limits owned or held by any Indian or Indian tribes, and 
that until the title thereto shall have been extinguished by the United States 
the same shall be and remain subject to the disposition of the United States, 
and said Indian lands shall remain under the absolute jurisdiction and control 
of the Congress of the United States; that the lands belonging to citizens of 
the United States residing without the said State, shall never be taxed at a high¬ 
er rate than the lands belonging to residents of this State. That no taxes shall 
be imposed by the State of South Dakota on lands or property therein belong¬ 
ing to or which may hereafter be purchased by the United States, or reserved 
for its use. But nothing herein shall preclude the State of South Dakota from 
taxing as other lands are taxed any lands owned or held by any Indian who has 
severed his tribal relation and has obtained from the United States, or from 
any person a title thereto by patent or other grant save and except such lands 
as have been, or may be granted to any Indian or Indians under any act of 
Congress containing a provision exempting the lands thus granted from taxa¬ 
tion, all such lands which may have been exempted by any grant or law of 
the United States, shall remain exempt to the extent, and as prescribed by such 
act of Congress. 

Third: That the State of South Dakota shall assume and pay that portion 
of the debts and liabilities of the Territory of Dakota as provided in this Con¬ 
stitution. 

Fourth: That provisions shall be made for the establishment and mainte¬ 
nance of systems of public schools, which shall be open to all the children of 
this State, and free from sectarian control. 

Fifth: That Jurisdiction is ceded to the United States over the military 
reservations of Fort Meade, Fort Randall, and Fort Sully, heretofore declared 
by the President of the United States; Provided legal process, civil and crimi¬ 
nal, of this state shall extend over such reservations in all cases of which ex¬ 
clusive jurisdiction is not vested in the United States, or of crimes not commit¬ 
ted within <he limits of such reservations. 

These ordinances shall be irrevocable without the consent of the United 
States, and also the people of the said State r/f South Dakota, expressed by 
their Legislative Assembly. 

INDIAN RESERVATION—RESIDENCE ON—VOTING. 

A person, though not in the army or navy, cannot, by long and continu¬ 
ous residence within the boundaries of a reservation, the jurisdiction where¬ 
of is ceded to the United States (Const. Art. 2 6, § 18), acquire the right to 
vote at a state election held in the county wherein such reservation is situ¬ 
ated. 

McMahon v. Polk, 10 S. D., 296. 73 N. W. 77. See also Collins v State. 3 S. D. 
18. 51 N. W. 776. 

ARTICLE XXVII. 

STATE CONTROL OF MANUFACTURE AND SALE OF LIQUOR. 

Note —Article 27 of the Constitution, providing that the manufacture and sale of liq¬ 
uor, should be under exclusive state control, was submitted by the legislature in 1897, 
and adopted by a vote of the people, at the general election in 1898, by a vote of 22,170 
for, and 20,557 against. The legislature in 1899 submitted an amendment repealing Arti¬ 
cle 27, and at the general election held in 1900 the amendment was adopted by a vote of 
48,073 for and 33,927 against. 

See State v. Tophy. 14 S. D. 119. 

ARTICLE XXVIII. 

5 1. The several counties of the State shall invest the moneys of the per¬ 
manent school and endowment funds in bonds of school corporation, state, 
county and municipal bonds or in first mortgages upon good Improved farm 
lands within their limits respectively; under such regulations as the legisla¬ 
ture may provide, but no farm loan shall exceed one thousand dollars to any one 
person, firm or corporation. 

Note —Article 28 was proposed by the legislature in 1899 as an amendment to the 
Constitution, and was at the general election held in November, 1900, adopted by a pop¬ 
ular vote of 49,989 for, and 15,653 against. 



TABLE OF CASES CITED IN THE CONSTITUTION 


Adams & Westlake Co. v. Deyette, et al, 8 S. D. 132; 65 N. W. 471. 

Adkins v. Lien et al. County Commissioners, 10 S. D. 436; 73 N. W. 909. 
Albien v. Smith, 19 S. D. 421; 103 N. W. 655. 

Aldrich et al, v. Collins, Supervisor, et al, 3 S. D. 154; 52 N. W. 854. 
Allibone, Treasurer, v. Ames et al, 9 S. D., 74; 68 N. W. 165. 

Assessment and Collection of Taxes, 4 S. D. 6, 20; 54 N. W. 818, 832. 
Batterton v. Fuller, 6 S. D. 268; 60 N. W. 1071. 

Benedict v. Johnson, 4 S. D. 388: 57 N. W. 66. 

Bennett v. State, 16 S. D. 417; 93 N. W. 643. 

Belatti v. Pierce, Police Justice, 8 S. D. 456; 66 N. W. 1088. 

B. H. F. & M. Co. v. G. D. & W. C. R. Co., 2 S. D. 546; 51 N. W. 342. 
Bonds, See In re, State Bonds. 

Bon Homme County v. Berndt et al, 13 S. P. 309; 83 N. W. 333. 

Boucher v. Clark Pub. Co., 14 S. D. 72. 84 N. W. 237. 

Brooke v. Eastman, Commissioner, 17 S. D. 339; 96 N. W. 699. 

Carter v. Thorson, 5 S. D. 474; 59 N. W. 469. 

Chamberlain v. Wood, et al, 15 S. D. 216; 88 N. W. 109. 

Church v. Walker, 10 S. D. 96; 72 N. W. 101; 74 N. W. 198. 

City of Deadwood v. Allen, 9 S. D. 221; 68 N. W. 333. 

City of Huron v. Campbell, Circuit Judge, 3 S. D. 309; 53 N. W. 182. 

Collins v. State, 3 S. D. 18; 51 N. W. 776. 

Constitution, construction of, 3 S. D. 548; 54 N. W. 650. 

Cutting, City Treasurer v. Taylor. State Auditor, 3 S. D. 11; 51 N. W. 949. 
Davenport v. Elrod, et al, Capitol Commissioners, 20 S. D. 567; 107 N. W. 833. 
Driscoll v. Jones, 1 S. D. 8; 44 N. W. 726. 

Duncan v. Newcomer, 9 S. D. 375; 69 N. W. 580. 

Dupree v. Stanley County, 8 S. D. 30; 65 N. W. 426. 

Ex parte Hawley, 22 S. D. -; 115 N. W. 93. 

Fallihee v. Wittmayer et al, 9 S. D. 479; 70 N. W. 642. 

Fremont, E. & M. V. R. Co. v. Pennington County, et al, 20 S. D. 270; 116 
N. W. 75. 


Garrigan v. Kennedy et al, 19 S. D. 11; 101 N. W. 1081. 

Gilbert v. Hole, 2 S. D. 164; 49 N. W. 1. 

Harris v. Stearns, County Treasurer, 17 S. D. 439; 97 N. W. 361. 

Hauser v. Seeley, et al, 18 S. D. 308; 100 N. W. 437. 

Hawley, ex parte, 22 S. D. -; 115 N. W. 93. 

Healey et al. v. Wipf, Secretary of State, 22 S. D. --—; 117 N. W. 521. 

Henderson v. Hughes County et al, 13 S. D. 576; 83 N. W. 682. 

Heston v. Mayhew, State Auditor, 9 S. D. 501; 70 N. W. 635. 

Heyler v. City of Watertown, 16 S. D. 27; 91 N. W. 334. 

Holden v. Haseradt, et al, 3 S. D. 4; 51 N. W. 340. 

House Resolution, 10 S. D. 249; 72 N. W. 892. 

Howard v. Burns, et al, 14 S. D. 384; 85 N. W. 920. 

Howard v. City of Huron, et al, 6 S. D. 180; 60 N. W. 803. 

In re Assessment and Collection of Taxes, 4 S. D. 6, 20; 54 N. W. 818, 832. 
Chapter 6, Session Laws of 1890, 8 S. D., 274; 66 N. W. 310. 

Construction of Constitution, 3 S. D. 548; 54 N. W. 650. 

Construction of Revenue Law, 2 S. D. 58; 48 N. W. 813. 

House Resolution No. 30, 10 S. D. 249; 72 N. W. 892. 

Limitation of Taxation, 3 S. D. 456; 54 N. W. 417. 

McClellan’s Estate, 20 S. D. 498; 107 N. W. 681. 

Nelson, 19 S. D. 215; 102 N. W. 885. 

Opinion of Judges, 13 S. D. 191; 83 N. W. 96. 

State Bonds, 7 S. D. 42; 63 N. W. 223. 

State Census, 6 S. D. 540; 62 N. W. 129. 

State Warrants, 5 S. D. 518; 62 N. W. 101. 


Taber, 13 S. D. 67; 82 N. W. 398. 

Watson, 17 S. D. 486; 97 N. W. 463. 

Jamieson v. Wiggin 12 S. D. 16; 80 N. W. 137. 

Jewell Nursery Co. v. State, 3 S. D. 11; 51 N. W. 949. 

Karcher v. Gans, 13 S. D. 383; 83 N. W. 431. 

Kirby v. Citizens’ Tel. Co. of Sioux Falls, 17 S. D. 362; 97 N. W. 3. 
Limitation of Taxation, 3 S. D. 456; 54 N. W. 417. 

Long v. Collins, Sheriff, et al, 12 S. D. 621; 82 N. W. 95. 

Lovett v. Ferguson, 10 S. D. 44; 71 N. W. 765. 

Mannie et al, v. Hatfield, Police Magestrate, 22 S. D. -; 118 N. W. 817. 

McClain v. Williams. 10 S. D. 332, 11 S. D. 60; 73 N. W. 72, 75 N. W. 391. 
McClellan’s Estate, 20 S. D. 498; 107 N. W. 681. 

McMahon v. Polk, 10 S. D. 296; 73 N. W. 77. 

Meek v. Meade County, 12 S. D. 165; 80 N. W. 182. <nA . 

Miles v. Benton Township, et al, 11 S. D. 450; 78 N. W. 1004. 

Minnehaha County v. Thorne, 6 S. D. 449; 61 N. W. 688. 

MiTsouri River Telephone Co. v. City of Mitchell, 22 S. D. -; 116 N. W. 67. 

Morrow v. Wipf, 22 S. D. -~; 115 N. W. 1122. 

Morgan v. State, 9 S. D. 230; 68 N. W. 538. 

Myers v. Longstaff, 14 S. D. 98; 84 N. W. 234. . . , 









60 


Table of Cases Cited 


Narregang v. Brown County et a]., 14 S. D., 357; 85 N. W., 602. 

Nelson v. Ladd, 4 S. D. 1; 54 N. W. 809. 

Nelson, See In re Nelson. 

Northwestern Loan & Banking Co. v. Jonasen et al, 11 S. D. 566; 79 N. W. 84». 
Opinion of Judges, 13 S. D. 191; 83 N. W. 96. 

Palmer v. Schurz, 22 S. D. -; 117 N. W. 150. 

Palmer v. State, 11 S. D. 78; 75 N. W. 818. 

Peano v. Brennan, 20 S. D. 342; 106 N. W. 409. 

Phenix Ins. Co. of Brooklyn, N. Y., et al, v. Perkins, Commissioner of In¬ 


surance, 19 S. D. 59; 101 N. W. 1110. 

Remington v. Higgins, 6 S. D. 313; 60 N. W. 73. 

Revenue Law, 2 S. D. 58; 48 N. W. 813. 

Rogers v. Gladiator Gold Min. & Mill Co., 21 S. D. 412; 115 N. W. 87. 

Ross v. Ward, 14 S. D. 240; 85 N. W. 182. 

Schuler et al, v. Board of Supervisors, 12 S. D. 466; 81 N. W. 890. 

Searle v. City of Lead, 10 S. D. 312; 73 N. W. 101. 

Shannon et al, v. City of Huron, 9 S. D. 356; 69 N. W. 598. 

Session Laws, 1890 C. 6, 8 S. D. 274; 66 N. W. 310. 

Skinner v. Holt et al, 9 S. D. 427; 69 N. W. 595. 

Smith v. Tosini et ux. 1 S. D. 632; 48 N. W. 299. 

Somers v. State 5 S. D. 321, 584; 58 N. W. 804, 59 N. W. 962. 

Stanton v.Stat e, 5 S. D. 515; 59 N. W. 738. 

State v. Adams, 11 S. D. 431; 78 N. W. 353. 

Ayers, 8 S. D. 516; 57 N. W. 611. 

Becker, 3 S. D. 29; 51 N. W. 1019. 

Bonds, See In re State Bonds. 

Burchard, 4 S. D. 448; 57 N. W. 491. 

Census, See In re State Census. 

Finder, 10 S. D. 103; 72 N. W. 97. 

Heffernan, et al, 22 S. D. -; 118 N. W. 1027. 

Kauffman, 20 S. D. 620; 108 N. W. 246. 

Lamphere, 20 S. D. 98; 104 N. W. 1038. 

Matejousky, 22 S. D. -; 115 N. W. 96. 

Mellette, 16 S. D. 298; 92 N. W. 395. 

Mitchell, 3 S. D. 223; 52 N. W. 1050. 

Morgan, 2 S. D. 32; 48 N. W. 314. 

Reddington, 8 S. D. 315; 66 N. W. 465. 

Roddle, 12 S. D. 433; 81 N. W. 980. 

Ruth, 9 S. D. 91; 68 N. W. 189. 

Scott, 7 S. D. 619; 65 N. W. 31. 

Scougal, 3 S. D. 55; 51 N. W. 858. 

Thompson, 4 S. D. 95; 55 N. W. 725. 

Vey, 21 S. D. 612; 114 N. W. 719. 

Walker, 9 S. D. 438; 69 N. W. 586. 

Wilcox, 22 S. D. -; 115 N. W. 687. 

Williams, 20 S. D. 492; 107 N. W. 830. / 

Wright, 15 S. D. 628; 91 N. W. 311. ' 

State ex rel. Adams State’s Att’y. et al, v. Herreid, et al, 10 S. D. 16 10 S D 
109; 72 N. W. 93. ' 

Adkins v. Lien, et al, 9 S. D. 297; 68 N. W. 748. 


Andrews v.Boyden et al. County Commissioners et al, 18 S. D. 388; 100 
N. W. 763, 108 N. W. 897. 

Ayres v. Kipp, 10 S. D. 495; 74 N. W. 440. 

City or Huron v. Campbell, 7 S. D. 572; 64 N. W. 1125. 

Cosper v. Porter, et al, 13 S. D. 126; 82 N. W. 415. 

Cranmer v. Thorson, 9 S. D. 152-154; 68 N. W. 202. 

Dollard, Attorney General, v. Board County Commissioners Hughe* 
County et al, 1 S. D. 292; 46 N. W. 1127. 

Gilbert, v. Union Investment Co. et al, 7 S. D. 51; 63 N. W 232 
Grigsby, Att’y Gen. v. Buechler County Treasurer, 10 S. D. 156; 72 N. W. 

114. 


Hayes, State’s Att’y. v. Board of Equalization for 
al, 16 S. D. 219; 92 N. W. 16. 


Lawrence County, et 


Hitchcock v^_ Hewitt et al, Board of Regents of Education, 3 S. D. 187 


Holmes, State’s Att’y v. Shannon 7 S. D. 319; 64 N. W 175 

Holmes, State’s Att’y. v. Finnerud, 7 S. D. 237, 319: 64 N W 121 176 

Kotilinic v. Swenson, 18 S. D. 202; 99 N. W. 1114. • • , . 

Lavin et al, v. Bacon et al, 14 S. D. 284; 85 N. W. 225. 

Lavin et al, v. Bacon et al, 14 S. D. 394; 85 N. W. 605. 

Long et al, v. Rexford, County Auditor; 21 S. D. 86; 109 N W 216 
McGee v. Gardner, 3 S. D. 553; 54 N. W. 606. 

Simons v. Nyquist, et al, 22 S. D. -; 116 N. W. 754. 

Wood v. Sheldon, 8 S. D., 525; 67 N. W. 613. 

Stuart et al, v. Kirley et al, 12 S. D. 246; 81 N. W. 147. 

Sundback v. Griffith, 7 S. D. 109; 63 N. W. 544. 

Synod of Dakota v. State. 2 S. D. 366; 50 N. W. 632. 

Taber, in re, 13 S. D. 67; 82 N. W. 398. 

Thomas et al, v. State, 17 S. D. 579; 97 N. W. 1011. 

Town of Dell Rapids v. Irving, 7 S. D. 310; 64 N. W. 149. 

Tripp v. City of Yankton, 10 S. D. 516; 74 N. W. 447. 

Turner v. Hand County, 11 S. D. 348; 77 N. W. 589. 

Union Nat. Bank of Omaha v. Halley et al, 19 S. D. 474; 104 N. W. 213 
VanDusen et al, v. State, 11 S. D. 318; 77 N. W. 201. 

Vine et al, v. Jones, Judge, et al, 13 S. D. 54; 82 N. W. 82. 

Walling v. Lummis, 16 S. D. 350; 92 N. W. 1063. 

Watson in re, 17 S. D. 486; 97 N. W. 463. 

Wells v. City of Sioux Falls et, al, 16 S. D. 547; 94 N. W. 425 
Western Town Lot Co. v. Lane, 7 S. D. 604; 65 N. W. 17. 

Western Town Lot v. Lane, 7 S. D. 5; 62 N. W. 982. 


Whittaker v. City of Deadwood, et al, 12 S. D. 608; 82 N. W. 202. ' 
Williamson v. Aldrich et al, 21 S. D. 13; 108 N. W. 1063. 

Wilson v. Board of Education, 12 S. D. 536; 81 N. W. 952. 

Wright v. Lee, 4 S. D. 237; 51 N. W. 707. 










Index to Constitution 


* 


ACTION Art 

county court—subject matter—parties—waiver— 


transfer—motion to dismiss. 5 

for fees. 5 

married woman’s rights—intoxicating liquors. 3 

removal of. 6 

state—subsistence furnished state troops.11 

ACTS 

effective ninety days after adjournment of legisla¬ 
ture . 3 

subjects prohibited . 3 

ACCUSED 

criminal offense, held when. 6 

ADJOURNMENT 

senate or house . 3 

ADMISSION OF EVIDENCE . 6 

AGRICULTURAL COLLEGE 

contracts of directors—ratification by state.13 

AGRICULTURAL LANDS 

drainage .25 

ALIENS 

resident and citizens, no distinction. 6 

AMENDMENTS 

bills in either house. 3 

emergency clause—tenure of office. 3 

prohibition . 3 

submission . 3 

submission, separate .22 

APPEAL 

circuit court . 5 

limit of by city charter. . . . .. 5 

records—complaint . 6 

supreme court . 6 

writ of from circuit and supreme courts. 5 

APPOINTMENT 

governor’s power to. 4 

legislator may not be during term. 3 

APPORTIONMENT 

congressional .19 

legislative . 3 

school funds . 8 

APPRAISAL 

school lands—board of. 8 

APPROPRIATION 

bill for—items disapproved by governor—procedure. 4 

bill, general—embraces what. ,...12 

sectarian schools aid forbidden. 6 


separate bills . . . 
special—misuse of 

ARMS 

right to bear.. .. 

ARTESIAN WELLS 

assessment for. . . 
taxation for. 


Sec. 


20 

16 

21 

7 

9 


22 

23 


10 

16 

9 

2 


6 


14 


20 

1 

19 

19 

1 


29 

34 

7 

20 

18 


8 

12 


1 

5 

3 


4 


10 

2 

3 

2 

9 


24 

2 

2 


P. 


17 

16 

8-9 

24 

40 


9 

9 


25 


6 

25 


43 


55 


27 

7 

4 

6 

6 

56 


19 

20 
24 
28 

17 


11 

5 


52 

4 

30 


31 


12 

41 

22 

41 

40 


29 


38 

36 







































62 


Index to Constitution 


ARTICLE 

I, Name—boundary. 

II, Division of powers of government. 

III, Legislative department. 

IV, Executive department. 

V, Judicial department. 

VI, Bill of rights. 

VII, Election and rights of suffrage. 

VIII, Education and school lands. 

IX, County and township organization. . . . 

X, Municipal corporations. 

XI, Revenue and Finance. 

XII, Public accounts and expenditures. . . . 

XIII, Public indebtedness. 

XIV, State institutions. 

XV, Militia . 

XVI, Impeachment and removal of officers 

XVII, Corporations. 

XVIII, Banking and currency. 

XIX, Congressional and legislative apporth 

XX, Seat of government. 

XXI, Miscellaneous. 

XXII, Compact with United States. 

XXIII, Amendments to the Constitution.. . 

XXIV, Prohibition. 

XXV, Minority representation. 

XXVI, Schedule and ordinance. 

XXVII, Intoxicating liquors. 

XXVIII, Investment of school moneys.... 

ASSAULT 

circuit court jurisdiction. 

ASSEMBLE 

right to .*.. 

ASSESSMENT 

credits . 

damages—jury trial .. 

taxation . 

unorganized county—action for fees. 

ATTORNEY 

circuit and supreme judges may not act as. 

ATTORNEY GENERAL 

certiorari—elections in unorganized counties 

election . 

see also State’s Attorney. 


BAIL 

capital offense—proof- 
excessive not required 

BALLOT 

certification of names- 
see Elections 

BANKING 


stockholder- 

BASTARDY 


BILL 


presented to governor—disapproval—procedure. 

readings three . 

see also Appropriations 

BOARD 

charities and corrections, see State Institutions 
regents, see State Institutions 


Art. 

Sec. 

P. 


3 

3 


1 

3 


1-28 

3-10 


1-13 

10-12 


1-3 8 

12-21 


1-27 

21-29 


1-9 

29-30 


1-17 

30-33 


1-7 

33-35 


1-3 

35-37 


1-12 

37-41 


1-4 

41-42 


1-8 

43-47 


1-5 

47-48 


1-7 

48 


1-8 

48-49 


1-20 

49-52 


1-3 

52 

• • 

1-2 

52 


1-3 

53 


1-4 

53-54 


1 

55 


1-2 

55-57 



57 



57 


17-18 

57-58 



58 


1 

58 


4 

22 


4 

22 


7 

39 


18 

51 


12 

26 

. . 5 

16 

16 

. . 5 

30 

20 

. . 5 

2 

13 


12 

12 


8 

25 


23 

29 


19 

28 


18 

28 


1 

21 


1-3 

52 


21 

18 


1-27 

21-29 


20 

7 


1 

4 


20 

7 

. . 4 

9 

12 


17 

6 



















































Index to Constitution 


63 


BONDS 

county, to refund warrants. 

educational, payment. 

state, sale of to meet losses. 

state, school funds. 

see also Corporations. 

BONDS, CREDITS, ETC. 

taxation of . 

BOUNDARY 

county—special laws changing. 

county—validity of act changing. 

see also County 
state, see State. 

BRAND AND MARK COMMISSION 

Fees—right of secretary of state to receive 

BRIBERY 

governor, penalty. 

state officials. 

CAPITAL OFFENSE 

bail—proof—burden of. 

CENSUS . 

CERTIFICATION OF NAMES 

ballot—pleadings—demurrer . 

CERTIORARI 
see Courts 

CHAMBER COURT 
see Courts. 

CHARITIES AND CORRECTIONS 
see State Institutions 

CHARGE TO JURY 

action for libel and slander . 6 5 

CHARTER 

city, town, village, cannot be changed by special act 3 23 

see also Municipal Corporations, 
see Corporations. 

CIRCUITS . 5\ 15 

increase . 5 17 

courts, see Courts. 

CITY 

see Municipal Corporations. 

CLASS LEGISLATION 


candidates—primary election law. 6 18 

CLERK 

supreme court . 5 12 

CLERK OF COURTS 

see County Officers 

COMMERCE, INTERSTATE 

statutes affecting. 3 21 

COMMISSIONS 

special—delegation of municipal functions. 3 26 

COMMITTEE OF THE WHOLE 

open unless business is secret. 3 15 

COMMON CARRIERS 

construction of lines.10 3 

telegraph—authority to construct.17 11 

telephone—rights of city council—of corporations.. 10 3 

COMPENSATION 

legislators .3 6 

property taken for public use. 6 13 

state officials .21 2 

streets—use . 0 13 

COMPLAINT 


allegation—damages—injunction—eminent domain. 6 13 

appeal—records . 0 7 

CONSTITUTIONAL CONVENTION .23 2 


Art. 


Sec. 


13 

13 

13 

8 

11 

3 

3 

4 

4 

3 

6 

3 

6 


4 

5 
2 
2 


23 

21 


13 

11 

28 

8 

5 

19 


P. 


44 

45 
43 
30 


39 


10 

8 


12 


12 

10 


25 

4 


28 


22 

9 

16 

16 


28 

15 


7 


10 


6 


37 

51 

37 


4 

27 

53 

27 


26 

24 

57 
































64 


Index to Constitution 


CONSTRUCTION 

laws .. 


CONTRACTS 
corporatio 
insurance- 
laws affe 


sale—school lands- 


CORPORATION S 

action again 


bonds—stock- 
charter 


contracts- 


-lssue- 


foreign- 

include 

railway 


-agent- 


main office- 


rates- 


TELEGRAPH 

regulations . 

see also Common Carriers, Corporations. 

CORRUPT SOLICITATION 
see Bribery. 

COUNTY 

affairs not regulated by special laws . . . 

bonds to refund warrants. 

boundary 


id. 


courts, see Courts. 

indebtedness—validity of act authorizing funding. . 
insane—charge—estate—support . 


officers 

election- 


-nomination- 


named—terms—compensation 
special acts—clerk of courts- 
organization 


circuit court- 


seat 


majority vote—mandamus—resubmission . . 
petition for removal—irregular proceedings- 


Art. 

Sec. 

P. 

3 

21 

7 

. 6 

7 

23 

,17 

5 

50 

6 

12 

26 

3 

22 

9 

3 

12 

5 

6 

3 

22 

8 

5 

31 

23 

2 

57 

17 

8 

50 

17 

7 

50 

17 

8 

50 

17 

9 

50 

17 

1-3 

49 

17 

5 

50 

17 

5 

50 

17 

18 

51 

17 

6 

50 

17 

19 

52 

17 

14 

51 

17 

12 

51 

17 

15 

51 

17 

17 

51 

17 

16 

51 

17 

13 

51 

11 

3 

38 

17 

11 

51 

3 

23 

9 

13 

4 

44 

9 

1 

33 

9 

1 

33 

3 

23 

10 

3 

21 

8 

3 

21 

8 

3 

23 

10 

5' 

10 

15 

5 

2 

13 

9 

6 

35 

9 

7 

35 

9 

5 

35 

9 

6 

35 

9 

1 

33 

5 

27 

19 

9 

4 

35 

3 

23 

9 

9 

2 

34 

9 

3 

34 

9 

3 

35 

9 

3 

34 

9 

1 

33 




















































Index to Constitution 


COUNTY—Continued 
unorganized 

assessment—action for fees . 

taxation . 

COURT CIRCUIT 

appeal—mandamus—powers . 

writ of—limitations . 

chamber orders—writs. 

clerk 

compensation—duties—election—vacancy 

judge—qualification . 

jurisdiction—misdemeanor—writs . 

terms—special—newly organized county . 

time of holding . 

COURT COUNTY 

bastardy proceedings—jurisdiction . 

criminal jurisdiction . 

judge—qualifications . 

same . 

term . .. 

jurisdiction—limit—special .. 

powers . 

COURT GENERAL 

enumerated . 

judges 

election to other office during term void. 

ineligibility . 

salary . 

salary . 

tenure of office . 

vacancies—filled how . 

COURT JUSTICE OF THE PEACE 

jurisdiction . 

COURT 

laws relating to. 

mandamus to compel delivery of seal and records. . 
open to all.*. 

COURT POLICE 

embezzlement prosecution—jurisdiction . 

same . 

COURT SUPREME 

appeals from circuit court. 

writ of—limitations . 

certiorari—Atty. Gen.—elections. 

clerk . 

error—writ—limitations . 

injunction—jurisdiction. 

judges 

districts elected from. 

qualifications . 

may not act as attorney. 

number . 

presiding . 

salary . 

term . 

jurisdiction . 

jury trial not allowed . 

mandamus—county judge—qualification . 

opinion at request of governor. 

quorum necessary to pronounce decision. 

reporter . 

terms—when—where . 

writs issuing from. 

CREDITS 

assessment of—deduction of indebtedness. 

CRIMINAL 

action 

conviction—error—reversal .. 




65 

Art. 

Sec. 

P. 


5 

16 

16 

3 

21 

9 

5 

29 

19 

5 

18 

17 

5 

14 

16 

5 

32 

20 

5 

25 

19 

5 

14 

16 

5 

27-28 

19 

5 

27 

19 

5 

• 21 

18 

5 

20 

18 

5 

10 

15 

5 

25 

19 

5 

19 

17 

5 

20 

17 

5 

20 

18 

5 

1 

12 

5 

35 

20 

5 

36 

20 

5 

30 

20 

21 

2 

54 

5 

36 

20 

5 

37 

21 

5 

22 

18 

5 

34 

20 

5 

37 

21 

6 

20 

28 

5 

1 

13 

5 

23 

18 

5 

2 

13 

5 

18 

17 

5 

2 

13 

5 

12 

15 

5 

• 18 

17 

5 

3 

14 

5 

11 

15 

5 

10 

15 

5 

31 

20 

5 

5 

15 

5 

9 

15 

5 

30 

20 

5 

8 

15 

5 

2 

13 

5 

3 

14 

5 

2 

13 

5 

13 

15 

5 

7 

15 

5 

12 

15 

5 

4 

15 

5 

3 

14 

11 

7 

39 

6 

9 

25 


Const—5 
























































66 


Index to Constitution 


CRIMINAL—Continued 
testimony aga 
jurisdiction 

county court 
offense 

accused held \ 
prosecution 

rights of defe 

CRUEL PUNISHMENT 
infliction of forbic 

DAMAGES 

eminent domain 
grade—municipal 

DEBT 

county—validity oi 


DEFINITIONS 


next 


public 


DIVERSION OF FUNDS 

see Municipal Corporations 

DIVISION 

powers of government.. 

DIVORCE 

legislature may not grant by special act. 

DONATIONS 

lands for schools—appraisal . 

DRAINAGE 

agricultural lands . 

DUE PROCESS OF LAW 

tax receipt—collection—evidence .. 

EASEMENT 

eminent domain—ultra vires . 

ELECTIONS 

ballot 

certification of names—pleadings—demurrer 

prevention of fraud. 

contested—certificate of—omission—pleadings. . . 

county officers . 

elector 

disqualified . 


free and equal. 

general—biennial . . . 
governor—vote for . . 
judges 

day for . 

vacancy—quo wai 
legislature—viva voce- 
next general defined. . 
primary 


Art. 

Sec. 

P. 

. 6 

9< 

25 

. 5 

20 

18 

. 6 

10 

25 

. 6 

7 

23 

. 6 

23 

29 

. 6 

13 

26 

. 6 

13 

27 

. 3 

21 

8 

. 6 

14 

27 

. 8 

13 

33 

. 5 

2 

14 

. 5 

2 

14 

.13 

5 

45 

. 5 

2 

14 

. 5 

3 

14 

5 

37 

21 

.12 

3 

42 

.10 

2 

36 

.12 

3 

42 

. 6 

25 

29 

. 2 

1 

3 

. 3 

23 

9 

. 8 

8 

31 

.21 

6 

55 

. 6 

2 

21 

. 6 

13 

27 

i 

. 6 

19 

28 

. 7 

3 

30 

. 5 

24 

18 

. 9 

6 

35 

. 7 

8 

30 


5 

30 


1 

29 


6 

30 


19 

28 


4 

30 


3 

10 


26 

19 

. 5 

3 

14 

. 3 

14 

6 


37 

21 


18 

28 


1 

29 


19 

28 

. 5 

2 

13 















































Index to Constitution 


67 


ELECTIONS—Continued 

women vote when . 

writ of—legislative vacancy 
ELECTOR, see Elections 

ELIGIBILITY, see Officer, State, etc. 


EMINENT DOMAIN 


complaint- 

easement— 


-allegations—damages*—injunction 


roads—township assessments- 
tions . 

ENACTING CLAUSE 

laws . 

ENCAMPMENT GROUNDS 

lands granted for. 

ENROLLED BILLS 


ERROR 

action for libel- 
criminal action- 
evidence—trial 


-conviction- 


ESTATE 

insane person—charge- 

EVIDENCE 

admission of letter . . 


EXECUTIVE OFFICE 


EXEMPTIONS 


taxation—occupations . 

tax receipt—evidence . 

EXPENDITURE OF FUNDS, see Municipal Corporations. 
EX POST FACTO 


FEES 

legislature may not increase or decrease by special 

acts . 

secretary of state’s right to take from Brand and 
Mark Commission . 

FELONY 


FERRIES 

legislatur 

FINES 

excessive- 


FIRE COMPANIES 

compensation .13 

FOREIGN CORPORATIONS, see Corporations. 


Art. 

Sec. 

P. 

7 

9 

30 

3 

10 

5 

3 

21 

7 

3 

21 

9 

6 

13 

27 

6 

13 

2 6- 

6 

13 

27 

17 

4 

49 

6 

13 

26 

3 

18 

6 

3 

1 

3 

4 

4 

11 

3 

1 

4 

6 

5 

22 

6 

9 

25 

6 

7 

24 

5 

18 

17 

3 

23 

10 

6 

. 8 

24 

3 

1 

4 

6 

7 

24 

3 

19 

6 

3 

13 

6 

6 

10 

25 

6 

2 

21 

4 

7 

11 

11 

2 

38 

21 

4 

54 

3 

22 

9 

11 

5 

39 

6 

17 

27 

11 

7 

39 

6 

12 

26 

12 

3 

41 

3 

23 

9 

4 

13 

12 

6 

22 

9 

11 

11 

41 

3 

23 

9 

6 

23 

29 

6 

15 

17 

3 

23 

9 


42 














































68 


Index to Constitution 


FORMER JEOPARDY 

conviction for rape . 

FUNDS 

county indebtedness—validity 
laws relating to particular fun 
school 

apportionment—warrants 
investment—duties of off 
losses to—state responsib 
losses—funded debt . . . 


GAMBLING 

legislature not to a' 

GENERAL ELECTIONS 
biennial . 

GOVERNMENT 

division of powers, 

GOVERNOR 

bills presented to- 


-disapprcval- 


commander-in-chief of 


election 


message 

powers 


removal of 


vacancy—office devolves on Lt. Gov. 

succession when Lt. Gov. cannot act. 

veto 

bribery—penalty . 

forbidden when . 

GRADE 

damages—municipal liability . 

GRAND JURY 

abolished or modified . 

GRANT 

land to state for militia. 

HABEAS CORPUS 

suspension of writ. 

HEIR AT LAW 

legislature may not constitute one person 

heir at law of another by special act. 

HIGHWAYS 

assessment of damages—jury trial . 

HOMESTEAD 

exemption . 

change of entry—rejection. 

forced sale . 

mechanics’ liens . 

HOUSE 

impeachment—sole power of. 

journal—evidence . 

judges own election returns—members’ qualifications 

presiding officer—duties . 

rules for proceedings. 

IMPEACHMENT 


Art. 

Sec. 

P. 

. 6 

9 

25 

O 

. O 

21 

8 

.10 

2 

36 

, 8 

7 

31 

. 8 

11 

32 

, 8 

7 

31 

. 8 

13 

33 

. 8 

15 

33 

. 8 

16 

33 

3 

25 

10 

7 

4 

30 

2 

1 

3 

4 

9 

12 

4 

11 

12 

4 

4 

11 

4 

4 

11 

8 

12 

33 

4 

3 

10 

3 

10 

5 

4 

4 

11 

15 

4 

48 

4 

5 

11 

4 

5 

11 

16 

4 

49 

5 

13 

15 

4 

2 

10 

4 

1 

10 

4 

6 

11 

4 

7 

11 

4 

11 

12 

3 

1 

3 

6 

13 

27 

6 

10 

25 

4 

4 

11 

6 

8 

25 

3 

23 

9 

17 

18 

51 

21 

4 

54 

11 

5 

39 

21 

4 

54 


4 

54 

16 

1 

48 

3 

13 

5 

O 
» o 

9 

5 

3 

19 

6 

3 

9 

5 

16 

1 

48 

16 

7 

49 

















































Index to Constitution 


09 


IMPEACHMENT—Continued 

house has sole power to try. 

lieutenant governor does not act when. . 
officer accused shall not exercise office. . 

persons liable—causes . 

second offense not liable. 

senate tries—duties . 

IMPRISONMENT FOR LIFE . 

INCREASE OF OFFICIAL SALARY. 

INDEBTEDNESS 

public—limited . 

INDIAN RESERVATION . 

INDICTMENT 

intoxicating liquors—sufficiency . 

joint charge—conviction . 

language of sufficiency. 

process—sufficiency of . 

INITIATIVE 

per centum to invoke. 

INJUNCTION 

eminent domain. See also Court-Supreme 
INSANE 

county charge—estate—support . 

INSTITUTIONS, see State Institutions 
INSURANCE 

contract—statutes affecting . 

policy form of. 

INSURANCE COMMISSIONER 

removal of . 

INTERPRETATION 

laws . 

INTERSTATE COMMERCE . 

INTOXICATING LIQUORS 

indictment—sufficiency . 

license—police regulation—fee . 

married woman’s right of action. 

validity of statutes—title of act. 

INVESTMENT OF SCHOOL FUNDS 

officers duties . 

JEOPARDY 

twice for same offence. 

JOINT CHARGE 

indictment—conviction . 

JOINT RESOLUTION 

evidence . 

signed by presiding officers. 

title of . 

JOURNALS 

examination of—judicial notice of taken 
legislative as evidence. 

JUDGMENT 

tax levy to satisfy . 

JUDICIAL 

circuits—increase of . 

power vested in. 

JURISDICTION 

justice of the peace. 

see also Courts 

JUSTICE OF PEACE 

jurisdiction . 

see also Courts 

JUROR 

number of in civil cases. 

prejudiced . 


Art. 

Sec. 

P. 

, 16 

1 

48 

. 16 

6 

49 

.16 

5 

49 

. 16 

3 

49 

,16 

8 

49 

16 

2 

48 

. 6 

15 

27 

, 12 

3 

41 

13 

1 

42 

.22 

1 

55 

6 

7 

23 

6 

7 

24 

6 

7 

24 

5 

38 

21 

3 

1 

3 

6 

13 

26 

3 

23 

10 

. 6 

1 2 

2 6 

3 

17 

6 

,16 

3 

49 

3 

21 

7 

3 

21 

7 

6 

7 

23 

11 

2 

38 

O 

t) 

21 

8-9 

3 

21 

7-9 

8 

11 

32 

6 

9 

25 

6 

7 

25 

3 

19 

6 

3 

19 

6 

3 

19 

6 

12 

3 

41 

3 

13 

5 

10 

2 

36 

5 

17 

16 

5 

1 

12 

5 

22 

18 

5 

22 

1» 

6 

6 

22 

17 

8 

50 













































70 


Index to Constitution 


JURY 

charge to—action for libel and slander. 

trial 

delay—discharge . 

probate proceedings . 

right to—number of jurors. 

violations . 

waiver—non waiver . 

right of in action for libel and slander. 

LAND 

donated for schools—appraisal . 

grant to state for militia. 

school 

board of appraisal . 

defined . 

lease—purposes . 

protection—legislative duty . 

sale . 

contract—default—execution . 

governor may disapprove . 

price per acre. 

trespasser’s claim . 

LANGUAGE 

indictment . 

statutes . 

LAWS 

banking . 

construction . 

contracts . 

courts . 

effective when . 

emergency clause—twc-thirds vote required. 

also . 

enacting clause . 

also . 

exemptions . 

ex post facto. 

granting immunities etc., forbidden . 

impairing contracts . 

initiative and referendum . 

language—title. 

passage—majority vote . 

police power . 

prohibited subjects . 

proposal. 

special forbidden . 

subject single expressed in title. 

submission . 

suspension . 

violation of right to trial by jury. 

see also Statutes. 

LEASE 

school lands . 

LEGISLATURE 

adjournment . 

apportionment. 

appropriation bills—governor’s disapproval—proced¬ 
ure . 

assessment and levy of taxes. 

bills—governor’s disapproval—procedure . 

composition . 

committee of the whole—open when. 

duty 

county organization . 

municipal corporations . 

school lands—protection. 

elections—viva voce . 

eminent domain—right against corporations. 

felony—treason—not to attaint persons. 


Art. 

Sec. 

P. 

6 

5 

22 

6 

7 

23 

6 

6 

22 

6 

6 

22 

6 

6 

23 

6 

6 

23 

6 

5 

22 

8 

8 

31 

4 

4 

11 

S 

4 

31 

8 

2 

30 

8 

9 

3 2 

8 

14 

33 

8 

4 

30 

8 

5 

31 

8 

12 

33 

8 

5 

31 

8 

10 

32 

6 

7 

24 

3 

21 

9 

6 

18 

28 

3 

21 

7 

3 

22 

9 

5 

34 

20 

3 

22 

9 

3 

22 

9 

3 

1 

4 

3 

1 

3 

3 

18 

6 

3 

22 

9 

6 

12 

26 

6 

18 

28 

6 

12 

26 

3 

1 

3 

3 

21 

9 

3 

18 

6 

6 

18 

28 

3 

23 

9 

3 

1 

3 

3 

23 

9 

3 

21 

7 

3 

1 

3 

6 

21 

28 

6 

6 

23 

8 

9 

32 

3 

16 

6 

3 

5 

4 

4 

10 

12 

11 

2 

38 

4 

9 

12 

3 

1 

3 

12 

3 

41 

9 

4 

35 

9 

1 

35 

8 

14 

33 

3 

14 

6 

17 

4 

49 

6 

22 

29 































































Index to Constitution 


71 


LEGISLATURE—Contin ued 

gambling—not to authorize . 

houses judge election returns and qualification of 

members . 

journal—evidence . 

laws prohibited . 

measures—proposal—submission . 

member 


oath 


administered by whom—form—penalty 

for refusal to take—swearing falsely 
violation of—penalty . 


vote—viva voce- 


mining and metalurgy- 


power 


prohibitions 


quorum- 
rules—e 
schools 
sessions 


length of 


taxation,see State Taxation. 

LIABILITIES—RELEASE OF . 

LIBEL 

evidence—absence of records .. 

publication of truth as defense. 

LICENSE 

tax—classification . 

LIEUTENANT GOVERNOR 

election—tie vote. 

impeachment of governor may not act as member 

of court . 

qualifications . 

president of senate—has only casting vote therein. . 

term . 

LIQUOR, see Intoxicating Liquors 

MAJORITY VOTE 

county seat election. 

laws, passage .. 

MANDAMUS—TO COMPEL 


see Court Supreme 
MARRIED WOMEN 

right of action—intoxicating liquor. 

MECHANICS’ LIEN 

homestead .21 


Art. 

Sec. 

P. 

O 

O 

» 

25 

10 

3 

9 

5 

3 

13 

5 

3 

23 

9 

3 

1 

3 

3 

12 

5 

3 

6 

4 

3 

6 

4 

3 

2 

4 

3 

8 

5 

3 

3 

4 

3 

11 

5 

3 

12 

5 

3 

3 

4 

3 

6 

4 

3 

14 

6 

15 

2 

48 

14 

5 

48 

3 

24 

10 

17 

15 

51 

3 

1 

3 

17 

10 

50 

3 

23 

9 

3 

9 

5 

3 

9 

5 

8 

1 

30 

3 

1 

4, 

3 

6 

4 

3 

15 

6 

3 

7 

5 

3 

27 

10 

3 

10 

5 

3 

24 

10 

6 

5 

22 

6 

5 

22 

6 

17 

28 

4 

3 

10 

16 

6 

49 

4 

2 

10 

4 

7 

11 

4 

1 

10 

9 

1 

33 

3 

18 

6 

9 

2 

34 

5 

37 

21 

5 

29 

19 

3 

21 

9 


54 




















































72 


Indux to Constitution 


Art. 


Sec. 


MILEAGE 


MILITIA 


MINING—METALURGY . . . 
MINOR 

real estate of cannot 
special legislative act . 

MISDEMEANOR 


be sold ojr mortgaged by 


MONEY 

see Funds, Public Money. 

MONOPOLIES 

forbidden .. 

MOTION TO DISMISS 

action in county court. 

MUNICIPAL CORPORATIONS 

any city—defined.. 

appeals limited—city charter—special acts, 
city 

council—tax levy—amount .. 

indebtedness—increase—water plant . . . . 
organization—charter—re-organization 

contracts—profit from forbidden .. 

expenditure—limit of . 

indebtedness 

annual tax to pay interest. 

limit—money in sinking fund—incurring 
debt—submission to vote—majority. 

warrants—validity . 

legislative duty . 

liability—grade—damages . 


roads—t 
taxation- 


NUISANCE 

fine for keeping and maintaining. 

NUMBER OF JURORS, see Jury. 

NURSERY STOCK 

sale—particular persons—deprivation of life, libel 
or property. 

OATH—MEMBER OF LEGISLATURE 

administered by whom—form of—penalty for refus 
to take—swearing falsely— violation—penalties. . 

OATH OF OFFICE 

state officials . 

OBLIGATIONS, LIABILITIES ETC. 

legislature cannot extinguish . 

OCCUPATIONS 

taxation—exemptions . 

OFFICE 

oath of . 

tenure of . 

OFFICER—STATE 


3 

6 

4 

15 

6 

48 

15 

7 

48 

15 

1 

48 

15 

3 

48 

4 

4 

11 

15 

2 

48 

15 

5 

4 8 

6 

16 

27 

14 

5 

48 

3 

23 

9 

5 

14 

16 

17 

20 

52 

5 

20 

17 

13 

5 

45 

5 

34 

20 

10 

1 

36 

13 

4 

44 

10 

1 

36 

11 

11 

40 

10 

2 

36 

13 

5 

44 

13 

4 

44 

10 

2 

36 

10 

1 

35 

6 

13 

27 

10 

2 

36 

11 

10 

41 

6 

13 

26 

10 

2 

36 

10 

2 

36 

11 

8 

40 

6 

23 

29 

6 

2 

22 

l 

3 

8 

5 

21 

3 

54 

3 

24 

10 

6 

17 

27 

21 

3 

54 

3 

1 

4 

3 

27 

10 

4 

12 

12 












































Index to Constitution 


73 


OFFICER—STATE—Continued 


OFFICER 


ORGANIZED COUNTY, see County. 
PARDONS 

governor’s power . 

PARTIES 

action in county court. 

PATENT 

school lands—issues when . . 

PENALTY 


PERSONS 

disqualifications for voting. 

legislature may not change name by special act. . 

PERSONAL SECURITY . 

PETITION 

removal of county seat. 

right to. 

PLACE 

name cannot be changed by special act of legislatu 
POLICE MAGISTRATE 


POLICE POWER 

laws . 

POLICY 


PREAMBLE . 

PRESIDING OFFICER 
duty to sign bills i 

PRIMARY ELECTION 


PRINTING, see Public Printing. 

PRIVATE PROPERTY 

public use—compensation . . 

PRIVILEGES, IMMUNITIES, ETC 


PRIVILEGED COMMUNICATION 
slander and libel. 

PROBATE 

county judge—qualifications 
PROCEDURE 

action—bastardy . 

appropriation—disapproval o 
bills—disapproval of governo 

bribery investigations . 

legislature—rules for . 

probate . 

PROCESS 

indictment—sufficiency of . 


Art. 

Sec. 

P. 

21 

9 

u 

54 

16 

3 

49 

4 

12 

12 

o 

O 

19 

6 

3 

20 

7 

4 

5 

11 

. 5 

20 

17 

. 8 

5 

31 

. 3 

27 

10 

3 

8 

5 

3 

6 

4 

. 7 

8 

30 

, 3 

23 

9 

. 6 

11 

25 

, 9 

3 

34 

, 6 

4 

22 

3 3 

23 

9 

. 5 

1 

13 

. 5 

23 

18 

6 

18 

28 

, 3 

17 

6 

. 5 

20 

18 



3 

. 3 

19 

6 

, 6 1 

18 

28 

, 7 

1 

29 

6 

13 

27 

. 3 

23 

9 

. 6 

18 

28 

, 6 

5 

22 

. 5 

2 

13 

. 5 

21 

18 

. 4 

10 

12 

. 4 

9 

12 

. 3 

28 

10 

, 3 

9 

5 

. 6 

6 

22 

. 5 

38 

21 

. 5 

38 

21 

, 6 

7 

24 


0 











































74 


Index to Constitution 


Art. Sec. P. 

PROMISE OF MARRIAGE 

seduction—evidence . 6 10 25 

PROOF 

burden of—evident proof. 6 8 25 

PROSECUTION 

carried on in the name and by the authority of State 

of South Dakota. 5 38 21 

criminal—rights of accused . 6 7 23 

PUBLIC 

officer—compensation .21 2 53 

see also Legislature, State, County Officials 
indebtedness 

agricultural college—contracts—ratification... 13 2 43 

amount authorized . 13 2 43 

limit of .13 1 42 

settlement of territorial debts .13 6 45 

money 

drawn when . 12 1 41 

particular funds .10 2 36 

profit from forbidden.11 11 41 

statement of receipts and expenditures.11 12 41 

itemized and published . 12 4 42 

lands, see Lands 

printing . 6 5 22 

appropriations—contract by state—incurring 

indebtedness .11 9 40 

use 

private property taken for. 6 13 26 

PUBLICATION 

right of. 6 5 22 

truth as defense in libel or slander. 6 5 22 

QUORUM 

majority of each house. 3 9 5 

QUO WARRANTO, see Court Supreme. 

RAILROADS, see Common Carriers, Corporations. 

RAPE. 

former jeopardy . 6 9 25 

RATES 

see Corporations, Common Carriers. 

RECORD 

appeal—complaint . 6 7 24 

mandamus to compel delivery of. 5 37 21 

REGENTS 

see State Institutions—Educational. 

RELIGIOUS WORSHIP. 

right of . . .. 6 3 22 

REFERENDUM 

per centum required to invoke. 3 i 3 

REPORTER 

supreme court . 5 12 15 

REPRESENTATIVE 
see Legislature. 

RESIDENCE 

sailor, soldier of U. S. army. 7 7 30 

REVERSAL OF JUDGMENT 

criminal action—error . 6 9 25 

RIGHTS OF MARRIED WOMEN . 2 5 55 

ROADS 

municipal corporations—other corporations—town¬ 
ship assessment. 6 13 26 

RULES 

legislative—each house determines . 3 9 5 


































Index to Constitution 


75 


PROHIBITION 

amendment relating to 


SALARY 

judges—all courts . . . 
see also Compensation. 


Art. 

3 


SCHOOL 

funds 

apportionment . 8 

investment—duties of officers . 8 

loss to—funded debt. 8 

responsibility of state . 8 

sectarian aid forbidden . 8 

state bonds—limitation . 8 

taxation for . 8 

lands 

board of appraisal . 8 

defined . 8 

lease—pasturage—meadow only . 8 

legislative duty to protect . 8 

patent issues when. 8 

* price per acre. 8 

sale . 8 

commissioner’s duty—governor approves. . 8 

contract of—default—execution. 8 

governor may disapprove. 8 

legislative duties . 8 

may not pass special act for management. 3 

officers must not be interested in sale of books 

etc. 8 

sectarian aid forbidden . 6 


SEAL AND COAT OF ARMS 


21 


SEAL OFFICIAL 

mandamus to compel delivery of. 5 

SEARCHES, SEIZURES, ETC. 

right of protection from. 6 

SEAT, see County. 

SECTARIANISM FORBIDDEN. 6 

8 

SECRETARY OF STATE 

member of Brand Commission—fees—right to. 4 

SEDUCTION 

evidence—promise to marry. 6 

SENATE, see Legislature 
SESSION, see Legislature 

SETTLEMENT OF TERRITORIAL DEBT.13 

SLANDER 

communication privileged . 6 

evidence—absence of records. 6 

SOLDIERS, SAILORS—U. S. 

not deemed residents. 7 

SPECIAL ACTS 

clerk of courts. 9 

commissions—legislature forbidden to authorize... 3 

legislature forbidden to pass . 3 

term—circuit court . 5 

see also Municipal Legislation 

SPEECH 

freedom of . 6 


STATE 

bonds—limitation—school funds . 8 

boundaries . 1 

expenditures—special appropriations-mis-use. . .11 

institutions—educational 

enumerated .14 


Sec. 

P. 

19 

6 

30 

20 


3 

30 

11 

32 

13 

33 

7 

31 

16 

33 

2 

30 

15 

33 

4 

31 

2 

30 

9 

32 

14 

33 

5 

31 

5 

31 

4 

30 

5 

31 

5 

31 

12 

33 

1 

30 

23 

9 

17 

33 

3 

22 

1 

53 

37 

21 

11 

25 

3 

22 

16 

33 

13 

12 

10 

25 


6 

45 

5 

22 

5 

22 

7 

30 

6 

35 

26 

10 

23 

9 

28 

19 

5 

22 

2 

30 

1 

3 

9 

40 

3 

47 














































76 


Index to Constitution 


STATE—Continued 

regents control 

appointment . 

powers. 

removal . 

tenure of office. 

vacancy . 

institutions—charitable and penal 

enumerated . 

board of control 
appointment 
members 

tenure of office. 

vacancy . 

name . 

officials 

compensation . 

defined. 

duties—powers prescribed by law. 

enumeration . 

office kept at capitol. 

tenure of office. 

taxation, see Taxation 
warrants 

auditor draws when. 

STATE’S ATTORNEY 

compensation work done for R. R. Comrs. while 

member of legislature. 

election contested—certificate of nomination—orn- 

missions in—pleadings. 

member of legislature—appointment to other office 

during term . 

qualifications . 

STATEMENT OF PUBLIC EXPENDITURES. 

STATUTES CONSTRUED OR REFERRED TO 
Compiled Laws 

535 . 

1302-1324 . 

1489 . 

1671-1679 . 

1891 . 

2452 . 

5126-7 . 

5139 . 

5213 . 

5507 . 

6147 . 

6509 . 

7043 . 

7119 . 

7312-7318 .(. 

7429 . 

Revised Political Code Sections 

810 . 

1275 . 

Revised Civil Code Sections 

554 . 

664 . 

864 ... 

Revised Justices’ Code Section 

148 . 

Revised Code of Criminal Procedure Sections 

395 . 

630 . 

Session Laws 

1887, Chap. 175. 

1889, " 41. 


Art. 

Sec. 

P. 

14 

3 

47 

14 

4 

48 

14 

4 

49 

14 

O 

O 

47 

14 

3 

47 

14 

1 

47 

14 

2 

47 

1 

1 

3 

21 

2 

53 

12 

3 

42 

11 

13 

12 

4 

12 

12 

4 

12 

12 

4 

12 

12 

11 

9 

40 

3 

12 

5 

5 

24 

18 

3 

12 

5 

5 

24 

18 

12 

4 

42 

5 

2 

14 

6 

13 

26 

17 

18 

51 

5 

24 

18 

10 

2 

36 

5 

24 

18 

21 

4 

54 

21 

4 

54 

21 

4 

54 

5 

34 

20 

5 

2 

14 

6 

7 

24 

5 

14 

16 

5 

14 

16 

5 

1 

13 

6 

7 

24 

5 

14 

16 

9 

6 

35 

5 

34 

20 

10 

3 

37 

3 

17 

6 

18 

3 

52 

5 

34 

20 

6 

7 

23 

6 

7 

23 

5 

2 

14 

6 

12 

26 

13 

5 

45 




















































Index to Constitution 


77 


STATUTES CONSTRUED OR REFERRED TO—Continued 
Chap. 5. ^4 


1890, 

Chap. 

5 . . 

44 

44 

6 . . 

4 4 

4 4 

37. 

4 4 

44 

64. 

44 

44 

78. 

4 4 

4 4 

86 . 

4 4 

4 4 

101 

4 4 

4 4 

150 

1891 

44 

6 . . 

44 

44 

15. 

4 4 

4 4 

21 . 

4 4 

4 4 

27. 

4 4 

4 4 

80. 

4 4 

4 4 

94 . 

4 4 

44 

99. 

1893 

4 4 

49 . 

1895 

4 4 

38. 

44 

4 4 

86 . 

44 

44 

89. 

4 4 

4 4 

103 

1897 

4 4 

10 . 

44 

44 

41. 

44 

44 

55. . 

44 

44 

72. . 

44 

4 4 

72. . 

44 

44 

83. . 

44 

44 

84. . 

44 

4 4 

90. . 

1901 

44 

65. . 

4 4 

44 

94. . 

44 

44 

110 . 

1903 

44 

86 . . 

4 4 

44 

190. 

1905 

44 

163 . 

1907 

44 

139. 

4 4 

44 

194. 


subjects of legislation forbidden. 3 

validity . 3 

see also Law. 

STOCKS, BONDS, ETC., see Corporations. 

STREETS 

use—compensation . 6 

SUBJECT OF A LAW SINGLE . 3 

SUBMISSION OF AMENDMENTS . 3 

SUCCESSION TO EXECUTIVE OFFICE. 4 

SUITS AGAINST STATE 

legislature directs in what court to be brought... 
SUPREME COURT, see Court 

SUSPENSION OF LAWS. 6 

TAXATION 

annual tax—legislature to provide for . 11 

assessment . 6 

bonds, credits, etc. 11 

corporations . 11 

exemption—occupations . 6 

exemption—deduction of indebtedness. 11 

levy—object of . 11 

license—classification . 6 

non-exemption . 11 


Art. 

3d 

Sec. 

P. 


2 

47 


13 

15 


1 

36 


2 

34 


20 

17 


22 

9 

21 

4 

54 


21 

8 

6 

7 

23 

6 

23 

29 


7 

39 


9 

40 

. 5 

16 

16 

.10 

2 

36 

. 6 

1 

21 

6 

18 

28 

.10 

2 

36 

. 6 

13 

26 

.11 

9 

40 

. 5 

16 

16 

. 3 

19 

6 

. 3 

19 

6 

. 6 

12 

26 

.10 

2 

36 

. 6 

12 

5 

3 

12 

5 

. 3 

21 

8 

3 

23 

10 

. 5 

2 

13 

5 

34 

20 

, 3 

21 

8-9 

.11 

2 

38 

. 5 

13 

16 

. 3 

24 

10 

. 4 

13 

12 

. 3 

1 

4 

, 3 

21 

8 

13 

4 

44 

.21 

2 

54 

14 

2 

47 

6 

17 

28 

3 

26 

10 

6 

6 

22 

3 

23 

9 

3 

13 

6 

6 

13 

27 

3 

21 

7 

3 

19 

6 

4 

7 

11 

3 

27 

10 

6 

21 

28 

11 

1 

37 

6 

12 

26 

11 

4 

39 

11 

3 

38 

6 

17 

27 

11 

2 

38 

11 

8 

39 

6 

17 

28 

11 

6 

39 


























































78 


Index to Constitution 


TAXATION—Continued 

property exempt. 

real property of corporations. 

school funds . 

state—limitations—public debt—legislative 

uniform . 

unorganized counties. 

value of property. 

TAX 

annual to pay interest on municipal debt. . . 
levy 

amount—city council . 

to satisfy judgment against city. 

receipt—as evidence . 

TENURE OF OFFICE 

judges . 

representatives—senators . 

TELEGRAPH, see Common Carriers. 
TELEPHONE, see Common Carriers. 

TERM, see Court, State Officials. 

defined . 

TERRITORIAL DEBT . 

TERRITORIAL STATUTES 

compensation of fire companies. 

TESTIMONY 

bribery investigations . 

TITLE 

express subject of law . 

joint resolution . 

laws—language . 

TOWN SUPERVISORS 

powers—expenditures of funds. 

TREASON 

defined—conviction for . 

legislature forbidden to attaint person of. . . 

TRIAL 

action—removal of . 

appeal to supreme court. 

delay—discharge . 

jury—right of . 

testimony—error . 

TRUSTS, ETC 

forbidden . 

TRUTH 

libel and slander . 

ULTRA VIRES 

easement—eminent domain .. 

UNORGANIZED COUNTIES 

elections illegal—certiorari . 

taxation . 

see Counties. 

USE 

streets—compensation . 

VACANCY 

clerk of circuit court. 

executive office—order of succession. 

judges 

filled how . 

quo warranto—elections—appointments 
state office—governor fills by appointment . . 

VALIDITY OF STATUTES 

evidence to impeach . 

VALUE OF PROPERTY 

taxation . 

VETO, see Governor. 

VOTE, see Election, Legislature, Majority Vote. 


Art. 

.11 

.17 

. 8 

powers 

. 11 

. 3 

. 11 

.13 

.10 

.10 

. 6 

11 

. 5 

. 3 


12 

13 

13 


3 

3 

3 

3 

10 

6 

6 

6 

6 

6 

6 

6 


17 


6 


6 


5 

3 


Sec. P. 


5 

39 

7 

50 

15 

33 

2 

38 

21 

9 

2 

38 

5 

44 

1 

36 

9 

u 

36 

2 

21 

7 

39 

36 

20 

1 

4-5 


3 

42 

6 

45 

1 

42 

28 

10 

21 

7 

19 

6 

21 

9 

2 

36 

25 

29 

22 

29 

7 

24 

20 

28 

7 

23 

6 

22 

7 

24 

20 

52 

5 

22 

13 

27 

2 

13 

21 

9 


6 13 27 

5 32 20 

4 6 11 

5 37 21 

5 3 14 

4 8 11 

3 13 6 

11 2 38 













































Index to Constitution 


79 


Art. Sec. P. 

WARRANTS 

auditor may draw when. 11 9 40 

city, see Municipal Corporations 

WELLS, ARTESIAN .10 2 36 

WITNESS 

process to secure. 6 7 24 

right of accused in criminal action. 6 7 23 

WOMAN 

voting rights . 7 9 30 

WOMAN 

married—right of action. 21 5 55 

WORDS AND PHRASES 
see Definitions. 

WORDING OF LAWS 

title . 3 21 9 

WORSHIP 

right to . 6 3 22 

WRIT 

appeals from Circuit Court. 5 18 17 

certiorari, see Court Supreme 

election—governor issues . 3 10 5 

error from supreme and circuit courts. 5 18 17 

injunction, see Court Supreme, 
mandamus, see Court Supreme. 

WRITING 

freedom of . 6 5 22 























IBRARY OF CO 


NGRESS 



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